Manitoba Child Support Guidelines Regulation

Manitoba Child Support Guidelines Regulation, M.R. 52/2023 The Family Law Act , C.C.S.M. c. F20 (enacted by SM 2022, c. 15, Sch. A) Regulation 52/2023 Registered May 26, 2023 bilingual version (HTML) Table of Contents Section OBJECTIVES 1 Objectives INTERPRETATION 2 Definitions and application AMOUNT OF CHILD SUPPORT 3 Presumptive rule, age of child and applicable table 4 Incomes over $150,000 5 Person in place of a parent 6 Medical and dental insurance 7 Special or extraordinary expenses 8 Split parenting time 9 Shared parenting time 10 Undue hardship ELEMENTS OF CHILD SUPPORT ORDER 11 Form of payments 12 Security 13 Information to be specified in order VARIATION OF CHILD SUPPORT ORDERS 14 Circumstances for variation INCOME 15 Determination of annual income 16 Calculation of annual income 17 Pattern of income 18 Shareholder, director or officer 19 Imputing income 20 Non-resident FINANCIAL INFORMATION 21 Obligation to provide financial information 22 Failure to comply 23 Adverse inference 24 Failure to comply with court order 25 Unenforceable provision TRANSITIONAL PROVISIONS, REPEAL AND COMING INTO FORCE 26 Transitional 27 Repeal 28 Coming into force Schedule I Child support tables II Comparison of household standards of living test III Adjustments to income OBJECTIVES Objectives 1 The objectives of these guidelines are (a) to establish a fair standard of support for children that ensures that they benefit from the financial means of both parents; (b) to reduce conflict and tension between parents by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and parents guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of parents and children who are in similar circumstances. INTERPRETATION Information Note The Province of Manitoba has been designated under subsection 2(5) of the Divorce Act (Canada) by an order of the Governor in Council for the purposes of the definition "applicable guidelines" in that Act. This regulation is the law that constitutes the guidelines for Manitoba. Definitions and application 2(1) The following definitions apply in these guidelines. "Act" means The Family Law Act . («  Loi  ») "child" means a child of the marriage under the Divorce Act (Canada), or a child as defined in section 56 of the Act, as the case may be. (« enfant ») "child support service" has the same meaning as in The Child Support Service Act . (« service des aliments pour enfants ») "Director of Assistance" means the Director of Assistance designated under The Manitoba Assistance Act . (« directeur des Programmes d'aide ») "Director of Disability Support" means the director designated under section 13 of The Disability Support Act . (« directeur du soutien pour personne handicapée ») "Federal Child Support Guidelines" means the Federal Child Support Guidelines established under section 26.1 of the Divorce Act (Canada). (« Lignes directrices fédérales sur les pensions alimentaires pour enfants ») "income" means the annual income determined under sections 15 to 20. (« revenu ») "majority of parenting time" means a period of time that is more than 60% of parenting time over the course of a year. (« majorité du temps parental ») "order assignee" means (a) the Director of Assistance or the Director of Disability Support, as the case may be, when a child support order has been assigned to the director under section 13 of The Family Support Enforcement Act ; (b) a minister, member or agency referred to in section 20.1 of the Divorce Act (Canada) to whom a child support order has been assigned under that Act; or (c) a government or agency of a government referred to in section 39 of The Inter-jurisdictional Support Orders Act to whom a child support order has been assigned. (« cessionnaire de la créance alimentaire ») "parent" means a parent or other person with a duty to provide support for a child under the Act. (« parent ») "province" means a province of Canada, and includes the Yukon Territory, the Northwest Territories and Nunavut. (« province ») "table" means a federal child support table set out in Schedule I of the Federal Child Support Guidelines as adopted in Schedule I of these guidelines. (« table ») "universal child care benefit" means a benefit provided under section 4 of the Universal Child Care Benefit Act (Canada). (« prestation universelle pour la garde d'enfants ») 2(2) Words and expressions that are used in sections 15 to 21 and that are not defined in subsection (1) have the meanings assigned to them under the Income Tax Act (Canada). 2(3) Where, for the purpose of these guidelines, any amount is determined on the basis of specified information, the most current information must be used. 2(4) In addition to child support orders made under the Divorce Act (Canada) and the Act, these guidelines apply, with such modifications as the circumstances require, to the following: (a) interim orders under subsections 15.1(2), 18.1(12) or 19(10) of the Divorce Act (Canada) and section 90 of the Act; (b) orders varying a child support order; (c) orders under subsection 18.1(15) or 19(13) of the Divorce Act (Canada); (d) calculations of child support under section 3 of The Child Support Service Act ; (e) recalculations under section 5 of The Child Support Service Act . 2(5) The provisions of these guidelines that confer a discretionary power on a court apply, with necessary changes, to calculations and recalculations by the child support service in accordance with the limitations set out in the Child Support Service Regulation, Manitoba Regulation 60/2020. 2(6) The calculation or recalculation of child support under the Divorce Act (Canada) is to be made by the child support service in accordance with the Divorce Act (Canada) and the applicable requirements of The Child Support Service Act and the Child Support Service Regulation . 2(7) In addition to applying to a parent, these guidelines apply, with such modifications as the circumstances require, to the following: a) a person other than a parent with a duty to provide support for a child under subsection 57(2) of the Act; b) a person other than a parent who is entitled to apply for child support under subsection 59(1) of the Act; c) a spouse or former spouse under the Divorce Act (Canada); d) a person who stands in the place of a parent under the Divorce Act (Canada). AMOUNT OF CHILD SUPPORT Presumptive rule, age of child and applicable table 3(1) Unless otherwise provided under these guidelines, the amount of a child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent against whom the order is sought; and (b) the amount, if any, determined under section 7. 3(2) Unless otherwise provided under these guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, 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. 3(3) The applicable table is (a) if the parent against whom an order is sought resides in Canada, (i) the table for the province in which that parent habitually resides at the time (A) an application is made for a child support order or for a variation order in respect of a child support order, (B) an application is made for a calculation of child support under section 3 of The Child Support Service Act , or (C) child support is to be recalculated under section 5 of The Child Support Service Act , (ii) where the court or the child support service is satisfied that the province in which that parent habitually resides has changed since the time described in subclause (i), the table for the province in which the parent habitually resides at the time of determining the amount of support, or (iii) where the court or the child support service is satisfied that, in the near future after determining the amount of support, that parent will habitually reside in a different province from the province in which the parent habitually resides at the time of that determination, the table for the different province; and (b) if the parent against whom an order is sought, or who is subject to a calculation or recalculation by the child support service, resides outside of Canada, or if the residence of that parent is unknown, the table for the province where the other parent habitually resides at the time (i) an application is made for a child support order or for a variation order in respect of a child support order, (ii) an application is made for a calculation of child support under section 3 of The Child Support Service Act , or (iii) child support is to be recalculated under section 5 of The Child Support Service Act . Incomes over $150,000 4 Where the income of the parent against whom a child support order is sought is over $150,000, the amount of a child support order is (a) the amount determined under section 3; or (b) if the court considers that amount to be inappropriate, (i) in respect of the first $150,000 of the parent's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates, (ii) in respect of the balance of the parent's income, the amount that the court considers appropriate, 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, and (iii) the amount, if any, determined under section 7. Person in place of parent 5 Where a person against whom a child support order is sought is not the child's parent but has been found by the court to have an obligation to pay for the support of the child either under the Divorce Act (Canada) as a person who stands in the place of a parent or under subsection 57(2) of the Act, the amount of a child support order is, in respect of that person, such amount as the court considers appropriate, having regard to these guidelines and the child's parents' legal duty to support the child. Medical and dental insurance 6 In making a child support order, where medical or dental insurance coverage for the child is available to either parent through their employer or otherwise at a reasonable rate, the court may order that coverage be acquired or continued. Special or extraordinary expenses 7(1) In a child support order the court may, on the request of a parent, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests, and the reasonableness of the expense in relation to the means of the parents and those of the child and, if the parents cohabited after the birth of the child, the family's spending pattern prior to the separation: (a) child care expenses incurred as a result of the parent's employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses, or any portion of health-related expenses, not covered by insurance that exceed $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and medications, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (e) expenses for post-secondary education; (f) extraordinary expenses for extracurricular activities. 7(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents in proportion to their respective incomes above the threshold level of income below which no amount of child support is payable in the table for the province in which the parent habitually resides, after deducting from the expense, the contribution, if any, from the child. 7(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. 7(4) In determining the amount of an expense referred to in subsection (1), the court must not take into account any universal child care benefit or any replacement benefit or any eligibility to claim such a benefit. 7(5) In clauses (1)⁠(d) and (f), "extraordinary expenses" means (a) expenses that exceed those that the parent requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's income and the amount that the parent would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account (i) the amount of the expense in relation to the income of the parent requesting the amount, including the amount that the parent would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (v) any other similar factor the court considers relevant. Split parenting time 8 If there are two or more children and each parent has the majority of parenting time with one or more of those children, the amount of a child support order is the difference between the amount that each parent would otherwise pay if a child support order were sought against each of the parents. Shared parenting time 9 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. Undue hardship 10(1) On the application of either parent, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship. 10(2) Circumstances that may cause a parent or child to suffer undue hardship include the following: (a) the parent has responsibility for an unusually high level of debts reasonably incurred to support the parents and their children prior to the separation or to earn a living; (b) the parent has unusually high expenses in relation to exercising parenting time with respect to a child; (c) the parent has a legal duty under a judgment, order or written separation agreement to support any person; (d) the parent has a legal duty to support a child, other than a child of the parents or a child of the other parent who is a party to the application, who is (i) under the age of majority, or (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and (e) the parent has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability. 10(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent. 10(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II. 10(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time. 10(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so. ELEMENTS OF CHILD SUPPORT ORDER Form of payments 11 The court may require in a child support order that the amount payable under the order be paid in periodic payments, in a lump sum or in a lump sum and periodic payments. Security 12 The court may require in the child support order that the amount payable under the order be paid or secured, or paid and secured, in the manner specified in the order. Information to be specified in order 13 A child support order must include the following information: (a) the name and date of birth of each child to whom the order relates; (b) the income of any parent whose income is used to determine the amount of the child support order; (c) the amount determined under clause 3(1)⁠(a) for the number of children to whom the order relates; (d) the amount determined under clause 3(2)⁠(b) for a child the age of majority or over; (e) the amount or amounts determined under subsection 7(1), the clause of subsection 7(1) to which each amount relates and the child or children to whom the expense relates; (f) the date on which the lump sum or first payment is payable and the day of the month or other time period on which all subsequent payments are to be made. VARIATION OF CHILD SUPPORT ORDERS Circumstances for variation 14 For the purpose of subsection 17(4) of the Divorce Act (Canada) and subsection 61(2) of the Act, any one of the following constitutes a change in circumstances that gives rise to the making of a variation order in respect of a child support order: (a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof; (b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or of any child who is entitled to support; (c) in the case of an order under the Divorce Act (Canada) made before May 1, 1997, the coming into force of section 15.1 of the Divorce Act , enacted by section 2 of chapter 1 of the Statutes of Canada, (1997); (d) in the case of an order under The Family Maintenance Act made before June 1, 1998, the coming into force of section 37 of The Family Maintenance Act, enacted by section 6 of chapter 56 of the Statutes of Manitoba (1997). INCOME Determination of annual income 15(1) Subject to subsection (2), a parent's annual income is determined by the court in accordance with sections 16 to 20, having regard to the financial information filed with the court under section 21. 15(2) Where both parents agree in writing on the annual income of a parent, the court may consider that amount to be the parent's income for the purpose of these guidelines if the court thinks that the amount is reasonable having regard to the parent's financial information filed with the court under section 21. Calculation of annual income 16 A parent's annual income is determined pursuant to sections 17 to 20 using the same sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency, adjusted in accordance with Schedule III. Pattern of income 17 The amount of income from a source of income under section 16 is the amount of income from that source that the court is satisfied that the parent will likely receive in the current year, and in determining that annual amount, where the court is of the opinion that the parent's current income from a source would not provide the fairest determination of the parent's annual income from that source, the court may have regard to the parent's income from that source over the last three years and determine an amount that is fair and reasonable in light of any pattern of income or fluctuations in income over the previous three years. Shareholder, director or officer 18(1) Where a parent is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the parent's annual income for taxation purposes does not fairly reflect all the money available to the parent for the payment of child support, the court may determine the parent's annual income to include (a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or (b) an amount commensurate with the services that the parent provides to the corporation, provided that the amount does not exceed the corporation's pre-tax income. 18(2) In determining the pre-tax income of a corporation for the purpose of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm's length must be added to the pre-tax income unless the parent establishes that the payments were reasonable in the circumstances. Imputing income 19(1) The court may impute such amount of income to a parent as it considers appropriate in the circumstances, which circumstances include the following: (a) the parent is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child or by the reasonable educational or health needs of the parent; (b) the parent is exempt from paying federal or provincial income tax; (c) the parent lives in a country that has effective rates of income tax that are significantly lower than those in Manitoba; (d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines; (e) the parent's property is not reasonably utilized to generate income; (f) the parent has failed to provide income information when under a legal obligation to do so; (g) the parent unreasonably deducts expenses from income; (h) the parent derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; (i) the parent is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. 19(2) For the purpose of clause (1)⁠(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada). Non-resident 20(1) Subject to subsection (2), if a parent is a non-resident of Canada, the parent's annual income is determined as if the parent were a resident of Canada. 20(2) If a parent who is a non-resident of Canada resides in a country that has effective rates of income tax significantly higher that those in Manitoba, the parent's annual income is the amount the court considers appropriate taking those rates into consideration. FINANCIAL INFORMATION Obligation to provide financial information 21(1) Subject to subsection (2), a parent who is a party to an application for a child support order or a variation order and whose income information is necessary to determine an amount of child support must file with the court a sworn Financial Statement in the form required by the court and the following information at the same time as the parent files their application, answer or reply, as the case may be: (a) a copy of every personal income tax return filed by the parent for each of the three most recent taxation years; (b) a copy of every notice of assessment and reassessment issued to the parent for each of the three most recent taxation years; (c) 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 remuneration; (d) where the parent is self-employed, for the three most recent taxation years (i) the financial statements of the parent's business or professional practice, other than a partnership, and (ii) 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; (e) 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; (f) where the parent controls a corporation, for its three most recent taxation years (i) the financial statements of the corporation and its subsidiaries, and (ii) 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; (g) 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; (h) in addition to any income information that must be included under clauses (c) to (g), 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 indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information. 21(2) If a parent is unable to file information required under clauses (1)⁠(a) to (h), the parent must file with the court an affidavit that explains why the parent is unable to file the information. 21(3) A parent whose income information is necessary to determine an amount of child support must provide to the other parent, or their authorized representative or an order assignee, after receiving a written request from the other parent, or their authorized representative or the order assignee, the documents referred to in subsection (1) and the following: (a) where a child support order or variation order is in effect which includes an order for special expenses under subsection 7(1), any current information, in writing, about the status of any expenses included in the order pursuant to subsection 7(1); (b) where a child support order or variation order is in effect which was made by the court on a determination of undue hardship under section 10, any current information, in writing, about the circumstances relied on by the court in the determination of undue hardship. 21(4) The financial information required under subsection (3) must be provided within (a) 30 days after receipt of the request if the parent resides in Canada; and (b) 60 days after receipt of the request if the parent resides outside Canada. 21(5) A request made under subsection (3) is deemed to have been received on the day it is received or 10 days after it is sent, whichever is earlier. 21(6) A parent may request financial information from the other parent pursuant to subsection (3) not more than once a year after a child support order or variation order has been made unless an application for a child support order or a variation order has been filed with the court and is pending. 21(7) A parent is not obliged to provide any documents the parent has previously provided in response to a request by the other parent under this section unless a court orders otherwise. 21(8) Where the court is of the opinion that the financial information filed by the parents is insufficient, the court may order a parent to file and serve the income information required under subsection (3) and any other financial information that the court deems relevant. 21(9) Nothing in these guidelines shall be construed as limiting the obligation of a parent whose financial information is necessary to determine the amount of the order to provide all relevant current financial information to the other parent and the court at the time of the hearing of the application. Failure to comply 22 Where a parent fails to comply with section 21, the other parent, their authorized representative or an order assignee may apply to the court without notice (a) to have the application for a child support order set down for a hearing or move for judgement; (b) for an order requiring the parent to provide the required documents and any other financial information that the court deems relevant within a specified time; and (c) for an order awarding costs in favour of the applicant up to an amount that fully compensates the applicant for all costs incurred in the proceeding. Adverse inference 23 Where the court proceeds to a hearing on the basis of an application under clause 22(a), the court may draw an adverse inference against the parent who failed to comply and impute income to that parent in such amount as it considers appropriate. Failure to comply with court order 24 Where a parent fails to comply with an order issued on the basis of an application under clause 22(b), the court may (a) strike out any of the parent's pleadings; (b) make a contempt order against the parent; (c) proceed to a hearing, in the course of which it may draw an adverse inference against the parent and impute income to that parent in such amount as it considers appropriate; and (d) award costs in favour of the other parent up to an amount that fully compensates the other parent for all costs incurred in the proceedings. Unenforceable provision 25 A provision in a judgment, order or agreement purporting to limit a parent's obligation to provide financial information under section 58 of the Act or under section 21 of these guidelines is unenforceable. TRANSITIONAL PROVISIONS, REPEAL AND COMING INTO FORCE Transitional 26(1) For the purpose of this section, "former guidelines" means the Child Support Guidelines Regulation, Manitoba Regulation 58/98. 26(2) This section applies to an application for a child support order or variation order that has been commenced but not fully disposed of before the coming into force of these guidelines. 26(3) Despite the repeal of the former guidelines, a party to an application for a child support order or variation order whose income information is necessary to determine an amount of child support must provide financial information in accordance with subsection 20(1) of the former guidelines instead of subsection 21(1) of these guidelines. Repeal 27 The Child Support Guidelines Regulation , Manitoba Regulation 58/98, is repealed. Coming into force 28 This regulation comes into force on the same day that The Family Law Act , S.M. 2022, c. 15, Schedule A, comes into force. SCHEDULE I (Subsection 2(1)) CHILD SUPPORT TABLES 1 Schedule I of the Federal Child Support Guidelines established pursuant to section 26.1 of the Divorce Act (Canada), as amended from time to time, is adopted for the purposes of these guidelines. 2 In applying Schedule I of the Federal Child Support Guidelines, a reference to "spouse" is to be read as a reference to "parent" as defined in section 1 of the Act. Note: The Federal Child Support Guidelines may be accessed at the following website: www.justice.gc.ca/eng/fl-df/child-enfant/ft-tf.html SCHEDULE II (Subsection 10(4)) COMPARISON OF HOUSEHOLD STANDARDS OF LIVING TEST 1 Schedule II of the Federal Child Support Guidelines established pursuant to section 26.1 of the Divorce Act (Canada), as amended from time to time, is adopted for the purpose of these guidelines. 2 In applying Schedule II of the Federal Child Support Guidelines, a reference to "spouse" is to be read as a reference to "parent" as defined in section 1 of the Act. SCHEDULE III (Section 16) ADJUSTMENTS TO INCOME 1 Schedule III of the Federal Child Support Guidelines established pursuant to section 26.1 of the Divorce Act (Canada), as amended from time to time, is adopted for the purposes of these guidelines. 2 In applying Schedule III of the Federal Child Support Guidelines, (a) a reference to "spouse" is to be read as a reference to "parent" as defined in section 1 of the Act; and (b) a reference to "spousal support" is to be read as a reference to support for a spouse as defined in section 63 of the Act.