One of the most important considerations during a separation or divorce is the wellbeing of the children involved. To help guide families through this sensitive process, the government established the Manitoba Child Support Guidelines. They outline the basic formula for determining child support using a federal table based on the income of the payor. This serves as the standard starting point for courts across Canada. Here is a brief hypothetical example to help clarify the concept:
Dave and Lisa are parents of Thalia. They both live in Manitoba and are separated. Dave has the majority of parenting time with Thalia and Lisa has less than 40% of the parenting time with Thalia. Dave makes $50,000 per year while Lisa makes $70,000 per year. According to the Guidelines for Manitoba, Lisa would pay $600 per month in child support to Dave.
What About Equal Parenting Time?
The situation becomes more complex when both parents have at least 40% of the parenting time. In such cases, Section 9 of the Guidelines applies. It outlines the factors the court must consider when determining the appropriate amount of child support to order:
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- Where each parent exercises not less than 40% of parenting time with a child 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 parenting time; and
(c) the condition, means, needs and other circumstances of each parent and of any child for whom support is sought.
- Where each parent exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account
The 40% threshold
The first step to invoking section 9 is meeting the threshold of no less than 40% of shared parenting time.
One common approach is to calculate parenting time in days (146 days/year) or hours (3504 hours/ year) (L(L) v C(M), 2013 ONSC 1801, Froom v Froom,2005 CanLII 3362 (ONCA)).
In Manitoba, the courts tend to be more flexible. The Judges take into account the varied circumstances of different families. The assessment will be more realistic and holistic rather than just the strict mathematical calculation (Mehling v Mehling, 2008 MBCA 66 at para 43). It is important to note that achieving the 40% threshold does not necessarily mean that less child support will be paid. It just means that the courts can consider the issue under s.9 (Gauthier v Hart, 2011 ONSC 815).
Deciding a Child Support Amount After the 40% Parenting Time Threshold
After the 40% threshold has been established, the courts will assess the financial evidence to determine what child support is appropriate.
First, they consider the set off child support amount. The set off works as follows:
Dave and Lisa are parents of Thalia. They both live in Manitoba and are separated. They have equal parenting time with Thalia. Dave makes $50,000 per year while Lisa makes $70,000 per year. Dave has to pay child support of $419/month and Lisa has to pay $600/month in child support for Thalia. We subtract what Lisa is supposed to pay ($600) from what Dave is suppose to pay ($419) and Lisa pays the difference to Dave which is $181/month (also called the set-off amount).
However, in addition to the set off amount, the Judges must also look at the financial situation of both parents to make sure the child support amount is reasonable. They are to examine the budgets and actual expenditures of both parents and determine whether equal parenting time has resulted in increased costs.
Sometimes adding only a night or two each month with the child will move the parent to 40%, yet their costs do not increase significantly, and the other parent’s expenses do not go down significantly. The Judges have to consider the financial realities of each family (Contino v Leonelli-Contino, 2005 SCC 63,Smederovac v Eichkorn, 2020 MBCA 57).
Child support matters when parents have equal or close to equal time involve a great deal of Judge discretion. Outcomes can be uncertain. Even if a parent meets the 40% parenting time threshold and presents compelling evidence, the result may still be unpredictable.
For further information or assistance, please contact us at info@patersons.ca.
Useful Links: Federal Child Support Guidelines Manitoba Child Support Calculator | Canada Child Support Guidelines
