Manitoba's Recalculation Service for Child Support Orders

by Nicolas Juzda, Articling Student-at-Law
(October 2005)

Recalculation Orders are a new addition to Manitoba's family law.  They allow the court to order that the amount of child support payable under the Guidelines from one parent to the other will be recalculated each year using a set procedure.  This lessens the need for parents to continually return to court for new Orders to raise or lower the amount of child support, though they may still do so if there has been a change in circumstance beyond what the Recalculation Order procedure takes into account. 

Currently, until an agreement is reached between the provincial and federal governments, orders made under the Divorce Act cannot include provisions to make them Recalculation Orders.  Only Orders under the provincial Family Maintenance Act qualify.  The recalculation service is free to the public although the parties will have to pay any related court filing fees and document service costs.

What is a Recalculation Order?

A Recalculation Order is a Court Order that states that the child support obligation is subject to recalculation due to changes in the income of one or both parents.  The Order that originally sets out the obligation for child support may include terms calling for recalculation, or if there is already an Order in place for child support that does not include terms calling for recalculation, a separate Order may be made to make the existing child support obligation subject to recalculation. 

Where a separate Order is required to make the existing child support obligation subject to court recalculation, it can be sought by a Notice of Motion, which may be made without notice if no other relief is requested.  It is important to note that, in order for the recalculation procedure to apply, there must be an Order in place that explicitly mentions recalculation.  There is no presumption that child support would be recalculated otherwise.

Limitations to a Recalculation Order:

• In order to be subject to recalculation, the amount of child support ordered must have been determined according to the Federal Child Support Guidelines (Manitoba Table).
   
  

• Additionally, the income used to make the calculations must have been actual, and not imputed (unless the income was imputed only because the amount of actual income could not be determined at the time of the Order but has since become clear). 
  
  

• The amount must also be the table amount according to income, without any adjustments due to the discretionary provisions in the guidelines.
  
  

• For a Recalculation Order to have any effect, both parents must live in Manitoba.  If either party moves out of the province, the Recalculation Order is automatically considered stayed until both parents are once again living in Manitoba.           

A Recalculation Order should contain:

• A provision authorizing recalculation, indicating that the child support obligation is to be recalculated by the provincial Child Support Recalculation Service on or after a specified date, or forthwith, and annually thereafter.
  
  

•  A provision that each parent provide financial disclosure as requested by the Determination Officer of the Child Support Recalculation Service.
  
  

•  A provision that each party advise the Child Support Recalculation Service of any change of address within 30 days.
  
  

•  If only the applicant has filled out the required forms, a provision requiring that the applicant parent give to the respondent parent a copy of the forms and that the respondent parent complete and return them to the Child Support Recalculation Service within 30 days
  
  

•  A provision that the applicant serve the Recalculation Order on the respondent, and provide proof of service and a copy of the Order to the Child Support Recalculation Service.
  
  

•  A provision that one or both parties authorize Canada Revenue Agency to release their tax records to the Child Support Recalculation Service.  (Optional)
  
  

•  A provision that one or both parties authorize Maintenance Enforcement to provide the Child Support Recalculation Service with any and all information available respecting their address and contact information.  (Optional)
  
  

•  A provision that one or both parties complete any necessary documents for the Child Support Recalculation Service to obtain copies of income and financial information from their employer or third parties.  (Optional)
  
  

•  A provision directing the recalculation of the parents' respective proportions of the special and extraordinary expenses of the children, where the original order listed specific special and extraordinary expenses the costs of which were to be divided proportionally according to the parents' income.  (Optional)

How the Recalculated Amount Is Determined

The incomes of both parties are checked against child support tables and the amount indicated becomes the new child support obligation.

If there is a provision in the Recalculation Order saying that specific special expenses are subject to recalculation, then the obligation of the parents is recalculated taking into account any changes in their respective incomes and any changes to the cost of the special expenses mentioned in the Order.

Recalculation only takes into account changes in income levels and, in the case of special expenses specified in the Court Order, changes in the cost of those expenses.  Recalculation does not take into account anything that occurred prior to the date of recalculation, arrears owing, new special expenses or the end of existing ones, the child no longer being dependant or having switched residences, or any other change in circumstances.  Variation Orders are still required to deal with those.

Procedure

After the Recalculation Order has been signed, the party seeking the recalculation will complete a Child Support Recalculation Service Registration Form which will be filed with a copy of the Order in Court.  The form will include both parties' full names, addresses, e-mail addresses, fax numbers, phone numbers, and a section where both parties will give permission to the Child Support Recalculation Service to obtain financial information about them for the purpose of recalculating child support.

The Court will then forward the completed form and the Recalculation Order to the Child Support Recalculation Service.  The Court will not retain a copy of the form.

Upon receiving the form and the Recalculation Order, the Determination Officer will contact both parents (and the Director of Employment and Income Assistance, who will be asked if their office has an interest in the matter) and inform them that a Recalculation Order has been registered with them.  The Determination Officer will provide the parents with some general information and inform them of date upon which recalculation will occur.  The Determination Officer will also inform both parents of their obligations under the recalculation order, including disclosure.

The Determination Officer will advise that if both parents (or an assignee, if relevant) notify the Child Support Recalculation Service in writing one month prior to the recalculation date that they do not want support to be recalculated that year, the process will not occur that year.  If the Recalculation Order requires that a calculation occur forthwith, the initial recalculation cannot be waived by agreement of the parties, but it could be waived in subsequent years.

On the date of recalculation specified (immediately upon receipt if a recalculation was ordered forthwith), the Child Support Recalculation Service will issue a notice to the parents (and the Director of Employment and Income Assistance) informing them that the recalculation process is occurring.  This notice will be sent by regular mail and deemed received 10 days after mailing.

The notice will request disclosure within 30 days, and specify what information is to be provided and how.  A blank form of affidavit will be included and directions as to how to complete it will be provided.

If disclosure is not made, the Determination Officer may take whatever steps are necessary to obtain the information.  Discussion is underway to amend the law to allow the Determination Officer to receive costs on a motion to compel disclosure if it is not provided voluntarily.  If disclosure is still not made, income may be imputed by the court.

If the parties dispute each other's information regarding income or expenses, the Determination Officer will make them aware of the option of mediation.

After the parties have completed their financial disclosure obligations, the Determination Officer will review the information and if necessary request further disclosure, meet with the parties, or seek an order of the Court, until such time as the Determination Officer is satisfied that a recalculation order can or cannot be made.

After reviewing the information provide, the Determination Officer may do one of the following:

• Issue a recalculated child support order with the updated amount, and provide the calculations used to arrive at the new amount; or
  
  

• Decline to issue a recalculated order, if:

a)    The parents have not provided sufficient information for the Determination Officer to determine their income (or the cost of special and extraordinary expenses);

b)    The parents have agreed on an amount of child support that is not unreasonable; or

c)    The matter is too complex or involves issues beyond the jurisdiction of the Child Support Recalculation Service.

If the Determination Officer does not issue a recalculated child support order, he will prepare a report and provide it to the court and the parents (and any assignees) explaining the reasons why recalculation was not possible.  If either parent still wants a change in the amount of child support, they must make an application for a Variation Order in the usual way.

The recalculated child support order with the new amount will be forwarded to the parties by regular mail.  It takes effect 31 days later.

If either party does not accept the recalculated Order, they can apply to court within 30 days for a Variation Order.  This application should be made as a variation of the original Order, not the recalculated one.  Filing this application within the proper time-frame suspends the coming into force of the recalculated Order.  The court will then consider the circumstances and either vary the original Order or dismiss the application for a variation.  If the variation is dismissed, the recalculated Order comes into effect retroactively on the date it would have and the paying parent is liable to pay the recalculated amount from that date.

If the recalculation Order in place does not refer to special expenses, or if there are additional special expenses beyond the scope of the recalculation order, the Determination Officer may upon request of both parents advise them as to what their new proportionate responsibilities according to income might be so that they may prepare a consent variation order, but such advice would not have the effect of creating a binding change in their obligations for special expenses.

Manitoba's first Determination Officer is Michael Williams.  His office is located at:

Child Support Recalculation Service

Room 201 - 373 Broadway

Winnipeg, Mb. R3C 4S4

Phone: 945-2293

Toll free: 1-800-282-8069 (ext. 2293)

Email: CSRS@gov.mb.ca

Fax: 204-948-2423

September 2005

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