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Family Justice

Family Law

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Family Law in Manitoba - 2008 Edition

Chapter 7


   
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CHILD SUPPORT


CHILD SUPPORT

Both parents have an equal duty to provide financial support for their children, whether or not there is a court order. This responsibility exists even where a court order or agreement gives a parent no right to see or even contact the children. A parent who remarries or enters into a new common-law relationship and starts a new family is still responsible for supporting the children of a previous marriage or relationship.

A parent is responsible for his or her own children, by birth or adoption. A parent must also support a partner's children, if that parent acted as a parent to the partner's children before the separation. Anyone who stands in the place of a parent (in loco parentis) to a child is obliged to support the child.

HOW LONG MUST A PARENT PAY SUPPORT?

In Manitoba, parents must support a child until the child is 18. Support may be required past the age of 18 if the child is still dependent because of illness or disability or if the child is still in school or completing his or her education at university or other post-secondary institution. Child support orders do not automatically end when a child turns 18 or is no longer dependent, unless the support order specifically says that it does. If the support order does not specify when child support ends, an application must be made to court to change (vary) the order.

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HOW MUCH?

In Manitoba, the court must decide the amount of a child support order under The Family Maintenance Act by following the rules and the tables contained in the Manitoba Child Support Guidelines. The Manitoba guidelines also apply to orders under the federal Divorce Act, unless one of the parents lives outside Manitoba. In that case the Federal Child Support Guidelines apply.

MANITOBA CHILD SUPPORT GUIDELINES

Child Support Tables

The guidelines set out how the court must calculate child support. The guidelines contain tables of child support amounts and the rules for using the tables. Manitoba has its own rules about how to use child support tables, but Manitoba uses the tables under the Divorce Act. For information on the Federal Child Support Guidelines tables, go to www.canada.justice.gc.ca.

There is a separate table for every province and territory, but there is little difference between them. The variations between provinces and territories are a result of different tax rates. The table to use is the one for the province where the paying parent lives. There are different rules when the paying parent lives outside Canada or can't be found. Then the table for the province where the recipient lives is used.

The tables set out the monthly amount to be paid. The amount depends on the total annual income (before taxes) of the payor and the number of children to be supported under the order. For example, under the current Manitoba tables, if the payor lives in Manitoba, earns $30,000 a year, and the order is for three children, the payor will pay $564 a month.

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Special or Extraordinary Expenses

In some circumstances, the court may add an amount to the basic table amount of support for certain special or extraordinary expenses. The expenses that may be claimed are:

  • child care expenses that the primary caregiver has because of work, school, training, illness or disability

  • health-related expenses over $100 per year above any insurance coverage, including, medicine, dental care, glasses

  • extraordinary expenses for primary or secondary school or other educational programs the child needs

  • post-secondary education expenses

  • extraordinary expenses for extracurricular activities

Questions the court considers:

  • Is the expense necessary for the child?
  • Is the expense reasonable, considering the parents' means and how the family spent its money before the separation?

In deciding what amount to order, the court considers any financial assistance the primary caregiver gets for the expense (Ex: a tax deduction for child care expenses) and both parents' incomes. As a general rule, the parents share the special expenses according to their income. The amount the paying parent pays is usually proportionate to each parent's income, above a certain minimum level. For example, if the paying parent earns twice as much as the receiving parent, and the expense is $75 a month, the paying parent will pay an extra $50 support. If the primary caregiver has little or no income, the paying parent may pay more, up to the total of $75. If the exact amount of a special expense is not known, the court can estimate the amount.

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Split Custody

When the parents split custody - each parent has primary care of one or more of their children - child support is calculated by figuring out how much each parent would pay to the other for the children in the other's care. The difference between the two amounts is the amount of support the parent who would have to pay more actually pays to the other parent. For example:

Jane and John have three children. Jane is the primary caregiver for two children and John is the primary caregiver for the third. John earns $30,000, so he would pay a table amount of $424 to Jane for the two children. He also is to pay $50 a month for special expenses, for a total of $474. Jane earns $20,000, so she would pay a table amount of $149 for one child. The difference between the two amounts is $325. The child support order would require John to pay Jane $325 per month.

Shared Custody

If the parents have shared custody, child support is calculated differently. To have shared custody means each parent must have the child at least 40 per cent of the time over the year. In these situations, while the court must consider the table amounts, it does not have to follow them. The court looks at the increased costs of a shared custody arrangement and the complete financial situation, including both parents' incomes, and the needs of the child. This may result in the paying parent paying more or less than the table amount, or the table amount plus special expenses. Basically, the guidelines allow the judge to decide what is fair and reasonable in the circumstances.

Children over 18

The guidelines also allow a more flexible approach in deciding support for children over 18 years old when the court feels using the guidelines tables is inappropriate. For example, the court may want to take into consideration income the child has from parttime jobs and scholarships, and any additional living expenses the child may have as a result of attending university away from home.

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Payor's Income over $150,000

Where the payor's income is over $150,000 per year, the court must order the table amount for $150,000, but the court is free to decide what additional amount of support, if any, is reasonable in relation to the amount of the payor's income over $150,000. In doing so, the court looks at the total financial picture, including both parents' incomes.

Step-children

Where the payor is a step-parent, or another person standing in the place of a parent, the amount of support depends on what the court thinks is appropriate in light of the guidelines and the parents' duty to support the child.

Undue Hardship

The court can make an order for more or less than the guidelines amount if either parent convinces the court that the guidelines amount would cause undue hardship to the parent or a child. For example, a paying parent who has to support a child from another relationship, or a paying parent who has unusually high access expenses, or a recipient parent who has unusually high basic living expenses, might claim undue hardship.

The parent claiming undue hardship must also show the court that the standard of living of his or her household would be lower than the standard of living of the other parent's household if the guidelines amount were paid. This means the court can look at the financial circumstances of all members of the parents' households, including new partners.

Special Provisions

Where there are special provisions in an agreement, or an order, that benefit the child, the court does not have to follow the guidelines, if doing so would be unfair considering the special provisions. For example, the court might decide it shouldn't order the guidelines amount where the paying parent agreed to transfer the family home to the primary caregiver, and the primary caregiver agreed to accept less monthly child support because of that.

Consent Orders

Parents may agree to child support different from the guidelines, but the court will not order the different amount unless it is reasonable. The court will look at the child support guidelines and the financial information the guidelines require the parents to file with the court. (See the section on Financial Disclosure that follows.) If the court does not think the agreed upon amount is reasonable, the court may order a different amount or refuse to grant a divorce until the parents agree to an amount that is reasonable or agree to have the court decide the proper amount.

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Determining Income

In making a child support order, the court always needs to know the paying parent's income and, in certain cases, the recipient parent's income as well. The table amounts vary according to the payor's total annual income before taxes. This includes the payor's income from all the same sources of income that a person must report in a tax return (Ex: employment, pensions, business, professional, commission, farming, fishing, workers' compensation and social assistance benefits).

For people whose only income is from employment, it is gross pay that is used, not net or take-home pay after deductions. The guidelines do, however, allow the addition and subtraction of some items, such as union and professional dues.

The court will estimate the amount the person is likely to receive in the current year, based on his or her present earnings and other income, and what the person has earned in the past three years.

Amounts that a person shows on a tax return do not always show a person's ability to pay support. For this reason the guidelines allow the court to add an amount to a person's income (impute income) in some circumstances. For example, a parent who is not required by law to pay income tax has more disposable income to pay child support than a person who must pay tax, so the court can add an amount to take this into account. Similarly, where a person quits a job to avoid paying support, the court can say the person's income is the same as it would have been if the person hadn't quit.

Financial Disclosure

As discussed, the amount of child support relates to the paying parent's income and in some cases to the recipient parent's income. The guidelines require the paying parent in all cases, and the recipient parent in certain cases, to provide certain financial information to the other parent on request. The basic rule is that a parent must provide income information where it is necessary to decide the amount of the order. The request must be in writing and can be made only once a year, unless there is a child support application before the court.

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The information to be provided is:

  • a sworn financial statement in the form required by the court

  • a copy of every personal income tax return filed by the parent in each of the three most recent taxation years

  • a copy of every notice of assessment or reassessment issued to the parent for each of the three most recent taxation years

  • where the parent is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date (including overtime) or, where such a statement is not provided by the employer, a letter from the parent's employer setting out that information, including the parent's rate of annual salary or pay

  • where the parent is self-employed, income for the three most recent taxation years in the form of:

    • the financial statements of the parent's business or professional practice, other than a partnership
    • a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent does not deal at arm's length
  • where the parent is a partner in a partnership, confirmation of the parent's income and draw from, and capital in, the partnership for its three most recent taxation years

  • where the parent controls a corporation, for the three most recent taxation years in the form of:
    • the financial statements of the corporation and its subsidiaries
    • a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation does not deal at arm's length

  • where the parent is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust's three most recent financial statements
  • where the parent receives income from employment insurance, social assistance, a pension, workers' compensation, disability payments or any other source, the most recent statement of income that shows the total income from that source in the current year; or a letter from the appropriate authority giving the required information

In addition, if there is a special expenses order, a parent has the right to current information on the special expenses. Where an order was based on a finding of undue hardship, a parent has the right to current information on the circumstances that led to the finding.

When a child support application is made to the court, either or both parents (depending on whose income information is necessary), must file with the court a sworn financial statement and copies of Canada Revenue Agency (CRA) income and deduction computer printouts showing the parent's income for each of the three most recent taxation years. The court can require the parents to file more financial information.

Parents who do not provide the required information may face serious penalties. They may have to pay the other parent a penalty of up to $5,000 and the other parent's legal costs. Contempt of court proceedings may result.

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Retroactive Support

A decision of the Supreme Court of Canada in 2006 confirms that the court generally has the authority to order retroactive child support. The court must consider a number of factors before deciding whether or not to do so.

Parents who are required to pay child support should know that if their income increases and they do not advise the other parent, they could be ordered to make retroactive payments at a later date.

FEDERAL CHILD SUPPORT GUIDELINES

The Federal Child Support Guidelines are the same as the Manitoba guidelines in most respects. The table amounts changed as of May 1, 2006. In most cases, the current tables will be used, but occasionally, such as in an application for retroactive child support, it may be necessary to look at the former tables. The federal guidelines apply in Divorce Act cases where one of the parents lives outside Manitoba. The support tables are exactly the same as the Manitoba Child Support Guidelines tables. However, there are some differences between the federal and Manitoba guidelines. For example, the federal guidelines require parents in all cases to file with the court all the financial documents listed under the Financial Disclosure section. However, the Manitoba guidelines only require a parent to file with the court a financial statement and the Canada Revenue Agency (CRA) printouts. Another example is that the federal guidelines allow both parents to claim special or extraordinary expenses. To find out more about the Federal Child Support Guidelines, contact:

Federal Department of Justice
Toll free: 1-888-373-2222
Website: www.justice.gc.ca/en/pi/sup-pen/

CHANGING A CHILD SUPPORT ORDER

A parent can apply to court to change (vary) a child support order. The court may change the order if:

  • the order was made under The Family Maintenance Act before June 1, 1998, the date the Manitoba Child Support Guidelines came into force

  • the order was made under the Divorce Act before May 1, 1997, the date the Federal Child Support Guidelines came into force

  • the order was made under the Manitoba Child Support Guidelines or the Federal Child Support Guidelines and was based on a table amount and a change has occurred (Ex: a change in the payor's income) which would result in a different table amount

  • the order was made under either the Manitoba Child Support Guidelines or the Federal Child Support Guidelines and it was not based on a table amount and an important change has occurred

The court will make the new order under the child support guidelines.

In March 2003, a new information booklet was developed to help parents apply to a court in Manitoba to change a child support order. This booklet, which is free of charge, is called A Guide to Changing Child Support Orders in Manitoba and it is available on the Internet at www.manitoba.ca/justice/family/changembsupportorder. The booklet can also be obtained through Manitoba court offices, the Maintenance Enforcement Program, offices of Legal Aid Manitoba, the Community Legal Education Association or

Family Law Branch
1230 - 405 Broadway
Winnipeg MB R3C 3L6
Phone: 945-0268
Fax: 948-2004
Toll free: 1-800-282-8069 (Ext. 0268)

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CHILD SUPPORT RECALCULATIONS

Both The Family Maintenance Act and the Divorce Act allow a program to be set up to recalculate child support orders at regular intervals based on updated income information. A recalculation is different from a variation in that a recalculated order will only take effect 31 days after both parents are advised of its terms. However, the requirement to pay the recalculated amount can be backdated to three months after the start of the recalculation process, to ensure the payor parent cannot gain an advantage by delaying providing his or her income information to the service. It cannot deal with support prior to that date, nor can it deal with any arrears of support. A variation can take into account changes other than income (such as a child no longer being dependent or moving to live with the other parent).

In the Spring, 2005, Manitoba Justice opened a Child Support Recalculation Service in Winnipeg to handle Manitoba cases. The service can recalculate child support orders made under Manitoba's Family Maintenance Act or under the federal Divorce Act.

To find out how to get more information about this service contact:

Child Support Recalculation Service
Room 201 - 373 Broadway
Winnipeg MB R3C 4S4
Phone: 945-2293
Fax: 948-2423
Toll free: 1-800-282-8069 (Ext. 2293)
E-mail: CSRS@gov.mb.ca

For recalculation to be considered, the child support order must contain a table amount of child support and be based on the actual income of the payor. Final or interim orders under The Family Maintenance Act are eligible for recalculation. Only final orders under the Divorce Act are eligible because of the terms of that Act. Both parents must live in Manitoba and one of them must obtain a court order authorizing the service to recalculate child support at regular intervals. This order can be part of a child support order or it can be granted at a later date.

To begin the recalculation process, the Child Support Recalculation Service will send a notice to both parents with a request for necessary updated financial information. The service will use this current income information to recalculate the table amount of support and, in some cases where the court has directed it, the amount for special or extraordinary expenses. The Child Support Recalculation Service will either issue a recalculated order or decline to do so if it decides, for technical reasons, that it would not be appropriate to recalculate the order. If either parent disagrees with the recalculated child support amount, he or she can, within 30 days of receiving the order, apply for a variation and a judge will decide what the child support amount should be.

Recalculation services are free of charge. However, the requesting parent is responsible to pay for any related court filing and document service fees.

For more information about the Child Support Recalculation Service, go to:

www.manitoba.ca/justice/family/law/recalculation.html

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WHERE ONE PARENT LIVES OUTSIDE MANITOBA

The Family Maintenance Act

A parent living in Manitoba can apply for support in the Manitoba courts under The Family Maintenance Act even if the other parent lives outside Manitoba. If the other parent is served notice and agrees to have the Manitoba court deal with the matter, the Manitoba court can hold a hearing and may make a support order that is valid and enforceable outside Manitoba. If the other parent does not agree with the Manitoba court hearing the matter, the order may not be enforceable outside Manitoba.

The Inter-jurisdictional Support Orders Act

On January 31, 2003, The Inter-jurisdictional Support Orders Act came into effect, replacing The Reciprocal Enforcement of Maintenance Orders Act. This changed the procedures for recognizing, establishing and varying child and other family support obligations when parties live in different provinces or countries. A reciprocating jurisdiction is a province, state or country that has an agreement with Manitoba to help Manitobans obtain and enforce support orders against a resident in that province, state or country. Residents of the other province, state or country are also able to obtain and enforce support orders against Manitoba residents. All Canadian provinces/territories and all American states are reciprocating jurisdictions, along with many other foreign countries. The list of reciprocating jurisdictions can be found at the end of the Inter-jurisdictional Support Orders Regulation at http://web2.gov.mb.ca/laws/regs/pdf/i060-010.03.pdf.

Under The Inter-jurisdictional Support Orders Act, Manitoba parents who want to apply for or change (vary) support obligations must fill out a support application form that will be sent to the jurisdiction where the other parent lives. The other parent will be notified of the application and the court there will make the appropriate support order. When the other parent lives outside Canada, there may be additional forms or procedures. The support application forms may be obtained from the Manitoba Justice website at:

www.manitoba.ca/justice/family/iso/formsummary.html

Contact the Inter-jurisdictional Support Orders Crown Counsel, Family Law Branch in Winnipeg at 945-0268, toll free 1-800-282-8069 (Ext. 0268) or by e-mail to isoquestions@gov.mb.ca for further information.

Support orders made in other Canadian provinces and territories, and in foreign reciprocating countries, can be registered in the Manitoba court and enforced by the Maintenance Enforcement Program. Manitoba parents who feel that a support order made in another Canadian province or territory should not have been made will need to apply to that other court if they wish to challenge it. Manitoba parents who feel that a support order made outside Canada should not have been made can ask the Manitoba court to treat the order as a support application and request a court hearing in Manitoba to set the appropriate amount of support.

The Divorce Act

Spouses can apply for child support under the Divorce Act in a Manitoba court as long as one of the spouses lives in Manitoba. The other spouse must be served with the petition. Even if they don't agree with the hearing being held in Manitoba, an order from a Manitoba court is valid. A support order made under the Divorce Act is valid and enforceable across Canada, and will usually be enforceable in reciprocating jurisdictions under The Inter-jurisdictional Support Orders Act. In some situations, the support order will not be enforceable outside Canada. This is why it is advisable to look into this issue before asking the Manitoba court to make a support order against a resident of another country.

Similarly, a Manitoba court can make a valid and enforceable order varying a child support order ( variation order) although one of the spouses does not live in Manitoba, as long as the other spouse is served with the application and agrees that the Manitoba court should decide the application. The Divorce Act also priovides for a variation procedure that allows part of the hearing to be held in the province where one spouse lives and the rest of the hearing held in the province where the other spouse lives. If one of the spouses lives in Manitoba and the other lives outside Canada and is served with the application, the Manitoba court can make a variation order whether or not the out-of-country spouse agrees that the Manitoba court should decide on the application.

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CHILD SUPPORT AGREEMENTS

Separated parents can make a private agreement, out of court, about child support. They may do this as part of a formal, written separation agreement. However, if they want a court order of support or a divorce, the amount of support must be reasonable. See the earlier sections on the Manitoba Child Support Guidelines and consent orders. The courts do not see agreements on child support to be binding like other contracts. For example, the court will not consider that a primary caregiver is bound by an agreement for child support that is significantly less than the children would get under the guidelines and there are no other benefits to the children in the agreement that would make it fair.

Agreements usually include information on the parents' incomes at the time the agreement is made. They specify how long the support is to be paid (Ex: until the child is 18 or completes his or her first university degree). Most agreements also state that the parents can amend the agreement if an important change occurs and that, if they cannot agree on the change, either can apply to the court for an order.

Agreements often contain much more detail about support arrangements than the usual court order. However, although the Maintenance Enforcement Program can enforce certain support agreements, as well as support orders, the program cannot do so if the provisions of the agreement are unclear or otherwise unsuitable for enforcement (see Chapter 11 on enforcement).

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TAXATION OF CHILD SUPPORT

Child support, unlike spousal support, is not taxable income for the recipient and it is not deductible for the paying spouse, unless the parents' order or agreement was made before May 1, 1997 and has not been changed after April 30, 1997. Before May 1, 1997, support paid under child support orders and agreements was included in the recipient's income, and was tax-deductible to the payor, provided certain conditions were met. Child support paid under child support orders and agreements made before May 1, 1997 continue to be included in income and deductible unless:

  • the order or agreement provided for the new tax rules to apply
  • the parents choose to file a joint tax return with the Canada Revenue Agency (CRA)

To file a joint return, the parents both fill out and sign a CRA Form T1157, Election for Child Support Payments, and send it to the CRA. For more information on this form, contact the CRA at 1-800-959-8281 or on the Internet at www.cra-arc.gc.ca.

To find out more about the tax rules, contact:

Income Tax Rulings Directorate
Policy and Legislation Branch
Canada Revenue Agency (CRA)
16th Tower A Place de Ville
320 Queen Street
Ottawa ON K1A 0L5

General Inquiries Line: 1-613-957-8953
Fax: 1-613-957-2088

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