Exceptions to the Table Amounts

The court is required to follow the table strictly, except in a few circumscribed conditions. The table amount may be different if:

• There are "special or extraordinary expenses", which are add-on to the table amount – Section 7

• The court finds "undue hardship", that is that the standard of living of the paying household is lower than the receiving household – section 10

• The child is over 18 – section 4

• The child is a child to whom one parents stands "in the place of a parent", or, to use the archaic language, "in loco parentis" - Section 5

• The parents have "split custody", that is, each parent has primary care of at least one child – Section 8

• The parents have "shared custody", that is, each parent has a child more than 40% of the time – Section 9

• The payor earns more than $150,000 annually.

Support in the Split Custody Situation

In a "split custody" case, that is, where there are at least two children, one of whom is living with each parent more than 60% to the time, the court performs the mathematic exercise of determining the table amount for each parent and offsetting one against the other.  The court has no discretion.

Example: 

Father earns $50,000 per year and mother earns $80,000.  If there are two children, one in each parent's care, father would pay her, on the Manitoba Tables, $405, and mother would pay him $619 per month, that is, a net payment by mother to father of $214.  If there are three children, two of whom live with mother and one with father, primarily, he would pay $663 for the two children with her and she would pay him $619 for the one child with him, or a net payment by her to him of $44 per month.

Support in the Shared Custody Situation

In a shared custody situation, that is, where a child's physical custody over the course of the year is shared between the parents with each having the child in his or her care between 40 and 60 percent of the time, child support is to be determined by the court in accordance with Section 9 of the Guidelines which reads as follows:

9         Where each parent exercises a right access to, or has physical custody or care and control of a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a)        the amounts set out in the applicable tables for each of the parents;

(b)        the increased costs of shared custody arrangements; and

(c)        the condition, means, needs and other circumstances of each parent and of any child for whom support  is sought.

While many courts have used the simple set-off approach applicable in a "split custody" case, with or without a formulaic multiplier, some have applied the basic table amount to one of the parents, while others have attempted to apply "common sense" assumptions about increased expenses, for example, and some have demanded a more rigorous analysis on the evidence.  

The Supreme Court in the case of Contino v. Leonelli-Contino (2005) ("the dollars for days" case, as it has been dubbed) dealt with the question and made the following important observations:

1.    Section 9 provides for a mandatory regime to determine child support in a "shared custody" case, that is, the presumptions used elsewhere in the Guidelines are not applicable. 

2.    The three factors are of equal importance and each must be considered. While this a deviation in the method of determining the amount, it is not necessarily going to lead to a different amount.

3.    The determination of child support in a shared custody case seeks to ensure that the child experiences a similar standard of living in the two households concerned.

4.    The basic table amount assumes (by legislative fiction) that the recipient parent pays all of the expenditures for the child and that the payor parent is not responsible for those costs at any level of access.

5.    While the court must look at the incomes of each parent and the amount each would pay on the tables, there is no presumption that these are to be set off against each other (as in a section 8 "split custody" case). Although this may be a useful starting point it is not the end of the inquiry.  Without evidence to the contrary, which  will include financial statements of both parents and/or child expenses budgets, the court may assume that the recipient parent's costs remain the same.

6.    There may be a difference if the case is the first determination of support or a variation, as costs may have been incurred in the first instance based on assumptions about continuing levels of child support at the table level. 

7.    The court said that so-called "common sense" assumptions about increased costs  or the use of multipliers to account for fixed costs which do not vary depending on the time the child is with the parent, for example, were unacceptable and that the determination required evidence.

In the Place of a Parent - In Loco Parentis

A person found to be standing in the place of a parent, or to use the archaic phrase "standing in loco parentis" may be required to provide child support to that child, notwithstanding that there may be a biological parent who has a prior obligation to support that child.  The court may actually require both of the "parents" to pay support to the custodial parent, the total amount of which may exceed what either of the payors might have had to pay individually.  The Guidelines in section 5 provides that the amount to be awarded is " such amount as the court considers appropriate, having regard to these guidelines and the child’s parents’ legal duty to support the child.

Child over the Age of 18

Where the child is over the age of 18 and still eligible for support then the court may order the regular table amount or if the court considers that amount inapropriate, the court may order a different amount, more or less, " having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child."  Typically, unless there is a huge disparity between the parents or if the child has significant means, the amount awarded will follow the tables.

Payor's Income over $150,000

Where the payor's income exceeds $150,000 annually, the court has the discretion to order the amount which would be provided by the tables or, if it considers the amount to be inappropriate, it will order the table amount up to income of $150,000, or more depending on the court's view of the appropriateness of its award "having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent to contribute to the support of the children".  In the landmark case of Frances v. Bacon the Supreme Court of Canada indicated quite strongly that most of the time the court will order the table amount, notwithstanding that the payment might be excessive in relation to the child's actual needs, that is, that effectively part of the amount paid might be considered a contribution to spousal support, even where there is no spousal support obligation.

Undue Hardship

The court may award an amount different from the table amount, higher or lower, upon a finding of "undue hardship". Undue hardship is defined in the guidelines. It can affect the payor, the recipient, or any child of either.

The court, to find undue hardship, must determine that the payor's household's standard of living will be less than the standard of living in the household of the parent receiving the support, and must set out is reasons in writing including, where applicable, its assessment of when the hardship will be relieved. A complex test, although not specifically required to be followed by the court, is set out in Schedule II to the legislation.

Hardship may be caused, amongst other possibilities, the list not being exclusive, by:

• unusually high access costs

• debts incurred during the marriage to support the family

• a legal duty to support another person or child