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Dependable Legal Assistance with Child Support in Manitoba
The legal issues surrounding child support are complex, and we at Fishman Beley Family Law Associates can help. We know that you want to ensure that your children receive the financial support they require at the end of your divorce or separation. Our lawyers have extensive experience handling child support and assisting clients, considering their best options. We will assess the situation thoroughly, resolve your concerns and represent your rights while keeping your child's well-being in mind.
Having a reliable legal team is important to achieve the best solution for your child. We will guide you every step of the way and represent your rights in every situation.
If you require assistance with child support in Winnipeg, please reach out to us. You can also find out valuable information in our FAQs section.
Sections
Please click on the links below to direct yourself to the relevant sections.
CHILD SUPPORT GENERALLY
Child support is the obligation of every parent during cohabitation and on separation for so long as their offspring is a “child of the marriage”. Child support in is governed by Child Support Guidelines, provincial or federal. For most cases, the Guidelines operate as a tariff, respecting which the court has very limited discretion.
CHILD SUPPORT GUIDELINES
Child support, unlike spousal support, which is almost completely discretionary, is governed by Child Support Guidelines, the application of which is mandatory in child support cases.
Where the parties do not agree on child support, the court will set it. On divorce, the court has a duty to withhold the divorce unless “reasonable” child support arrangements are in place.
Reasonable child support is deemed to be the amount set out pursuant to the Regulations called Child Support Guidelines which have been made under the Divorce Act (Canada) and The Family Law Act (Manitoba).
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Federal Child Support Guidelines: The Federal Child Support Guidelines apply to divorce cases in each province, except those provinces, including Manitoba, which have passed their own Guidelines.
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Manitoba Child Support Guidelines: The Manitoba Child Support Guidelines apply to all children in the province, with minor exceptions, whether their parents were married or not or whether they are divorcing or only separating.
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The Manitoba Guidelines are very similar to the federal ones, but there are important differences, particularly when dealing with Section 7 Expenses.
The Child Support Tables, which set out the amounts payable depending on which province the one paying support lives, are the same, whether under federal divorce legislation or Manitoba's legislation.
See the Fishman Beley Primer on:
SOLE PARENTING OR PRIMARY PARENTING
The relationship between parenting/custody and child support is
Sole custody/parenting or primary care:
A sole parenting or primary parenting situation, for Guideline purposes, is one in which the children are in the parenting time of one parent more than 60% of the time throughout the year.
In these situations, the other parent will pay the amount dictated by the tables for the province based on their income and the number of children.
Split parenting/custody:
A split parenting/custody scenario is one in which each parent has primary parenting time (more than 60% of the time) with one or more children.
In those cases, each parent pays child support based on their income for the number of children in the primary parenting time of the other. While this is often set out as a net payment, it is better for tax purposes for the parties to exchange the full payment as this may affect the Alternate Eligible Deduction.
If one parent had two children and the other parent had one child, then the look-up would work the same way, except that the amount payable for two children would be used by the parent who has custody/parenting of one and vice versa.
Shared parenting time/shared care and control:
Where the parties share parenting/care and control of the child(ren) between 40% and 60% of the time, they are said to have “shared parenting time.” In those situations, the amount payable is:
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The net “split parenting amount”; or
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Some other figures that the court deems appropriate based on the increased costs of shared parenting/custody.
For the court to apply, an amount different than the basic table or the offset amount requires that the parties lead to evidence of the increased costs of the shared custody/parenting arrangement, an exercise that few litigants undertake. This is known colloquially as a Contino analysis, which is named after the famous case. This approach is rarely used in parenting litigation, given the costs and uncertainty. Most shared custody/parenting support cases, particularly where there isn’t a significant disparity in the parents’ incomes, are determined on the “split custody/parenting” or offset formula.
There are often battles between parents counting the hours to get into that magic zone of “shared custody” or "shared parenting time," too often primarily for financial reasons. The assessment of time with each parent usually involves the counting of overnights. For example, a typical formulation of every second weekend (Friday and Saturday overnight with a return on Sunday evening) and one overnight (4 out of 14 nights) during the week works out to 28.57%, whereas if you add Sunday overnight and another overnight in the off-week, the percentage jumps to 42.85%, that is, within the “shared” range.
HOW TO USE THE CHILD SUPPORT GUIDELINES
Child support is usually a two-part obligation. The first is for the payment of Basic Table support, which is intended to cover the general day-to-day or basic costs of raising a child, and for special or extraordinary expenses, known as Section 7 Expenses, which cover expenses that are unusual and not required in every situation, such as health expenses, daycare and extraordinary costs for activities.
The application of the Guidelines involves the following steps:
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Determine what the parenting/care and control arrangement is.:
For child support purposes, there are three main forms of custody/parenting, “primary (or sole custody/parenting),” “shared custody/parenting,” and “split custody/parenting.” See the Primer on the Relationship between Custody/Parenting and Child Support.
Where the payor has taken deductions from their income for Capital Cost Allowances (“CCA”) against rental income, that will be added back to their income for child support purposes. -
Determine the number of children.
The tables take into account, amongst other things, the economies of scale that arise when there is more than one child in a family. Typically, it doesn’t cost double or triple the cost of utilities, housing, food, etc., for the second or third child. Thus, the amount payable for two children is not double what is payable for one child. -
Determine the income of the paying party.
The determination of income is a critical component of the calculation or look-up. In most cases, where the parties earn their incomes from salaried jobs, their incomes for Guideline purposes may simply be exactly the same as the income shown on Line 150 of their most recent income tax return. Where income fluctuates from year to year, the court may look at a three-year average.
There may be adjustments to the determination of income. However, the most common one is the deduction of union dues to determine the party’s income for Guideline purposes. -
Imputing income:
Because Line 150 may not always be the way to determine a party’s true income for child support purposes, the court has the power to “impute income” where that figure is not representative of actual income or is less than what the person should be able to earn with reasonable employment. Often the court will impute income at minimum wage for a full-time job.
Where a person has income from a business, corporation or self-employment, the court may look beyond the income tax return to adjust for such things as write-offs, hiding monies in a corporation, or non-taxable benefits of employment. While these write-offs or other deductions are perfectly legal for income tax purposes, the court in a child support case is interested in working from a knowledge of what the payor’s resources actually may be.
The court can “impute income” where a person is seen to be deliberately under-employed, under-reporting income for tax purposes, or is not using available corporate pre-tax income, for example. Money earned “under the table,” often claimed but difficult to prove, can lead to an imputed income finding. -
Determine the table amount:
This will require looking at the Child Support Guidelines table for the province in which the payor lives. Each province has a slightly different tax structure, so a payor living in Alberta, for example, paying support for a child in Manitoba, will pay based on the Alberta Table.
The Tables for Manitoba can be found here. The Basic Table amount payable is the amount shown opposite the payor’s income in the column for the number of children. -
Determine if there are eligible Section 7 expenses:
a. Does the expense qualify under the statute as a “special or extraordinary expense?”
b. Determine the parties’ respective incomes.
c. Determine if the sharing of Section 7 Expenses should be proportional to the parties’ incomes, less the threshold amount, or in some other manner.
d. If the child is an adult, consider whether and how much the child should contribute to her expenses?
SPECIAL AND EXTRAORDINARY EXPENSES UNDER THE GUIDELINES
What is a Section 7 Expense?
In addition to the basic table amount, a parent may be required to contribute to the net cost of special or extraordinary expenses as those are defined in Section 7 of the Guidelines.
These add-ons must fall into specific categories, as set out in the legislation, for:
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Child care expenses to allow the custodial parent to work or train for employment
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Health-related expenses, as itemized
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Extraordinary expenses for education
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Expenses for post-secondary education
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Extraordinary expenses for extracurricular activities
These "add-ons" must be reasonable, having regard to the means of the parents and the child, necessary in relation to the child’s best interests, and bear a relationship to the family’s spending pattern prior to the separation. In Manitoba, only the primary parent can apply for add-ons.
Section 7 expenses are treated somewhat differently in Manitoba compared to the Federal Guidelines and other provinces, so be extremely careful in reviewing case law from other provinces.
When an expense is determined to qualify as a Section 7 Expense, the Guidelines suggest, as a “guiding principle,” that the expense should be shared proportionately as to incomes after deduction of the “threshold amount” (the amount below which no child support is payable) of approximately $12,000.00.
For example,
The payor earns $75,000, and the payee earns $50,000 annually. They would, therefore, share the eligible Section
7 Expenses based on the following calculation:
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Payor’s income, less the threshold amount, is: $75,000 - $12,000 = $63,000
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Payee’s income, less the threshold amount, is: $50,000 - $12,000 = $38,000
Their combined incomes for calculation of S. 7 expenses is $101,000 and, therefore, their respective proportional share would be:
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Payor’s proportion is: $63,000 / $101,000, or 62.38%
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Payee’s proportion is: $38,000 / $101,000, or 37.62%
When making the calculation, however, most laypeople will forget about the threshold amount and round the calculation off at $75,000 / $125,000 or 60% and 40%. Often, the parties, or the court, may simply assess the cost-sharing as equality.
Net Costs
It is important to remember that cost-sharing is the "net" cost. For example, tax deductions or credits will reduce the actual cost of daycare costs, and insurance may reduce the cost of health expenses. The added cost of the insurance, individual versus family plan, may be added back on as an expense.
CHILD SUPPORT CALCULATORS
The internet is alive with child support calculators, and the federal government maintains a highly informative selection of materials on child support. See it here.
The determination of income is a critical component of the calculation or look-up. In most cases, where the parties earn their incomes from salaried jobs, their incomes for Guideline purposes may simply be exactly the same as the income shown on Line 150 of their most recent income tax return. There may be adjustments to that amount. However, the most common is the deduction of union dues to determine the party’s income for Guideline purposes.
EXCEPTIONS TO THE GUIDELINES
The Guidelines, which are really, for the most part, a tariff, apply strictly in all cases except the following:
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There are "special or extraordinary expenses," which are add-ons to the table amount
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The court finds "undue hardship," that is, that the standard of living of the paying household is lower than the receiving household and that there is hardship
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The child is over 18 – see our section on “child of the marriage”
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The child is one to whom one parent stands “in the place of a parent,” or, to use the archaic language, "in loco parentis"
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The parents have "split custody/parenting," that is, each parent has primary care of at least one child
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The parents have "shared custody/parenting," that is, each parent has the child more than 40% of the time
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The payor earns more than $150,000 annually. While the court has the power not to apply the table amount where the payor’s income is over $150,000, it almost always follows the table amount
While in these exceptional situations, the court may have some discretion to alter or add to the table amount, the result, typically, is that the court will stick with the table amount for basic support and order the payment of Section 7 Expenses proportionately.
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 and continuing obligation to support that child.
The determination that a person stands in the place of a parent is seen as a declaration of status and is, therefore, not easily changed. Unfortunately, what often happens is that the non-biological parent who has cared for the child and supported the child historically will find himself paying support while the emotional bonds and contact deteriorate rapidly.
The court may actually require both the biological and in loco parentis "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 S. 5, provide 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 OF THE MARRIAGE (OVER 18 YEARS OLD)
Where the child is over the age of 18 and still eligible for support as a “child of the marriage”, the court may order the regular table amount or, if the court considers that amount inappropriate, 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’ incomes or if the child has significant means, the amount awarded will follow the tables.
“Child of the marriage” is a term of art that is defined in the law. It allows the court to order support for adult children who continue to be dependent on their parents. It can extend the usual parental responsibilities, from moral or emotionally based ones (for example, some parents’ willingness to assist in the financing of post-secondary education of their children) when the family is intact to legal ones where the parents have separated.
This provision may also find application in the cases of disabled or needy children, although at some point in those cases, the burden will likely fall to the state.
Typically, the courts have held that the obligation for separated parents to support their children continues while the individual is seen as a “child of the marriage,” that is, dependent on their parents, which often extends the support beyond the age of 18 to the completion of a first post-secondary degree or training program.
This obligation can be fixed to terminate at a particular age, but unless the court stipulates an age, The Family Support Enforcement Act in Manitoba sets the age of 24 as the presumptive termination date for support of children, even if the court order reads "until further order of the court".
One problem that comes up when communication has broken down between the parties or the non-custodial parent and the child is whether the adult child continues to be entitled to be supported, perhaps having dropped out of their program or not pursuing it diligently.
This issue is now to be addressed by the Maintenance Enforcement Program at first instance when the child reaches the age of 24. They will reach out to the creditor parent to ascertain if the child remains eligible for support. Failure of the creditor parent to respond may lead to the termination of support, and, given the information, MEP will also have the reviewable power to terminate the order’s provision.
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 an 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. Baker, the Supreme Court of Canada indicated quite strongly that most of the time, the court will order the table amount, notwithstanding that the parents 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 their reasons in writing, including, where applicable, its assessment of when the hardship will be relieved.
Hardship may be caused, amongst other possibilities, by the list not being exclusive by:
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Unusually high access costs
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Debts incurred during the marriage to support the family
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A legal duty to support another person or child
A complex test, although not specifically required to be followed by the court, is set out in Schedule II to the Guideline Regulation. While a great number of cases begin with a claim for undue hardship, the reality is that very few are actually pursued, and the vast majority of those pursued are dismissed by the courts.
FINANCIAL DISCLOSURE
Because the Guidelines are income-driven, they contain extensive provisions for financial disclosure. A party can demand complete financial disclosure annually, including copies of tax returns and assessments for the preceding three years (if not previously supplied), a statement of income for the year-to-date, and other information if the payor is in business or a partnership. The Rules now require a Demand for Financial Information to be served with the Petition.
Most court orders for child support will usually contain a provision for ongoing financial disclosure, such as the annual exchange of income tax returns and notices of assessment.
Failure to provide disclosure can lead to serious consequences, fines or payment of the other party's legal costs. A recipient of child support can demand updated disclosure annually, and many court orders for support include the annual exchange of tax returns and corporate financial statements.
RETROACTIVE CHILD SUPPORT - ARREARS
The Supreme Court of Canada, in a ruling dealing with 4 cases out of Alberta, has stipulated that child support is the "right of the child" and that retroactive child support is appropriate where the payor's income has increased. See D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37.
The theory behind the argument for retroactive child support follows the notion that the payor is uniquely aware of his or her own income and, therefore, should have paid the amount that would be ordered on the Tables.
Where there was an explicit obligation to disclose financial information, in a court order, for example, that the payor flouted, this “blameworthy conduct” might militate a court going back a number of years, but in the typical case, three years is the limit.
VARIATION OF CHILD SUPPORT ORDERS
When incomes change significantly, or child custody/parenting arrangements change, such as when a child moves from one parent’s home to the other, is no longer eligible to be supported, or where some other material change of circumstances for the parties and/or the children occurs, the courts have the power to alter the child support order.
The applicant must prove a “material change of circumstances.”
Administrative Orders for Support, Recalculation and Enforcement
The Child Support Service Act allows Support Determination Officer (SDO) to now make an initial calculation of child support, to recalculate child support and to terminate child support for adult children. On application, the SDO may issue a limited decision on table and s.7 expenses.
Recalculation of orders, where there is a recalculation order in effect, will continue and where there is an order without such a provision, it can be initiated by completing an appropriate form upon when submitting the order for signing. The first recalculation will be one year after the initial child support decision was made and then every two years after the first recalculation. Parties can jointly opt out of recalculation, although the SDO must be satisfied this is voluntary.
The Family Support Enforcement Act provides for the enforcement of support orders and provides for an administrative mechanism to suspend the enforcement of court orders upon application for up to 6 months.
Recent changes to The Family Law Act allow MEP to make changes without a court order, to recalculate support where the number of children changes, or to adjust mathematical errors.
If there has been a significant change, MEP has the administrative power to suspend enforcement of a child or spousal support order for up to 6 months, and in fact, the parties are required to seek this remedy before turning to the court for a suspension.
The Manitoba Department of Justice has created a very helpful Guide to Changing Child Support Orders in Manitoba, which walks you through the necessary steps to vary a court order for child support.
CALCULATION & RECALCULATION OF CHILD SUPPORT ORDERS
The Child Support Service Act replaces the former provisions for the recalculation of child support. The Child Support Service can now calculate and recalculate child support orders. The Child Support Service Act allows the service on the application of a party or on behalf of a child the program to administratively calculate the amount of initial child support orders and the recalculation of child support orders based on new information.
The Service cannot proceed if there is a question of the right or obligation to support or if it has not been provided with appropriate and necessary information. The determination will be enforceable as a court order. An aggrieved party may apply to the court to challenge the determination.
The Service will have powers to seek out financial information from a payor, the government or another entity necessary to make determinations under the Child Support Guidelines. It will not make determinations in shared custody/parenting cases, in complex cases or where the payor is a non-resident.
TAXATION AND CHILD SUPPORT
Some provisions of the income tax regime in Canada will apply to the separated parents of children, such as the Child Tax Benefits, the Alternative Eligible Dependent (AED) deduction, and provincial credits for fitness and the like. The rules are complex and can easily be a trap for the unwary. See the Fishman Beley Family Law Primer section on Taxation of Support for greater detail.
WHY CHOOSE US?
When it comes to family law issues, it is best to turn to a legal team you can trust. At Fishman Beley Family Law Associates, a seasoned team is always available to help. There are many reasons to choose our services, such as:
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We have years of experience
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We provide an extensive list of family law services
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We offer entirely personalized legal assistance
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We adhere to the highest standards
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We are always forthcoming with information
GET IN TOUCH
If you require help with child support in Winnipeg, please don't hesitate to reach out. We recommend scheduling an appointment with us before you take any legal action.
