What is the test for a shared custody order?

A finding of shared custody requires a threshold determination that the parent seeking such an order have physical custody of or exercise access to the subject child or children for “not less than 40 percent of the time over the course of a year”. While there may be some variation in how a court determines the 40 percent threshold, there must be a valid determination that the 40 percent threshold is met before a Judge has the discretion to depart from ordering the table amount of child support on this basis. This is not a debatable point in this jurisdiction or elsewhere in Canada (Contino v. Leonelli-Contino, 2005 SCC 63, [2005] 3 S.C.R. 217; Locke v. Goulding, at para. 35. See also S.C. v. S.H., 2016 NLCA 43.