WHAT IS A PARENTING ARRANGEMENT?
Effective March 1, 2021, the Divorce Act of Canada has been amended and has removed all references to “custody”. The organization and scheduling of children’s time with their parents, where the parents are legally married, is now described as the “parenting arrangement”. Provincially, the Family Law Act has also removed references to “custody” for parents who are not married.
Sole Parenting Time
It is fairly rare for one parent to have sole parenting time, and generally only applies when one of the parents will not be parenting. While the other parent may have access to the child, in a sole parenting time arrangement the parent with sole parenting time will get to make all decisions for the child. The other party does not lose their rights as a parent and can always apply to the court to ask for a change in parenting time
In a practical sense, there are few day to day differences between sole and joint custody. There are some decisions that a sole custodial parent is entitled to make, without the consent of the other, such as traveling internationally or obtain psychological assistance for a child. However, more often if these abilities are required, joint custody will still be ordered, with a parent possibly having the ability to undertake these specific actions.
BOTH PARENTS HAVING PARENTING TIME
The vast majority of parents both have parenting time with their children. There are no standard schedules that parties must follow, and a significant part of the process is often determining the best schedule for all of the parties involved.
The amount of time each parent spends with the child will have an effect on the amount of child support that will be paid.
What is shared PARENTING TIME?
In a shared parenting arrangement, both of the parents will have the children in their care at least 40% of the time.
In a shared parenting arrangement, both parents pay support to each other. Generally, we determine the amount each party would have to pay to the other pursuant to the Manitoba Child Support Guidelines and have the higher income earner pay the difference. For example, if one parent would have to pay $500.00 a month and the other would have to pay $300.00 per month, then the higher income earner would pay $200.00 per month.
What is Child Support?
In every separation involving children, child support will be payable by one or both parents.
If one parent has sole custody or primary care and control, the other parent will pay child support. The amount of child support is set out in legislation called the Child Support Guidelines and is calculated based on the paying person's income and the number of children.
The exceptions to this rule are very rare, and would only occur as follows:
1. A parent is able to meet the definition of “Undue hardship”. This is very rarely met, and in each and every case where a parent can establish “undue hardship” it is because he/she has a lower income than the parent with sole custody or primary care and control; and because other factors are present which make the payment of child support patently unfair (such as payment of marital debts, or disability).
2. A child is over the age of 18, and is still dependent. Occasionally if the parent with whom the child lives has a high household standard of living (i.e. a high income, or a spouse with a high income) the child support paid may be less than the Child Support Guidelines states.
If the parents have shared custody, then both parents will pay child support to each other based on each of their incomes and the number of children.
Until 2016, when parents had shared custody we would calculate the amount that each would have to pay to each other and have the higher-earning parent pay the difference of the two numbers. Recently, a case called Harder v. R. came out of the Tax Court which has confirmed that, in order for both parents to claim children in a shared custody situation, they both have to actually pay the total amount for the children. Family lawyers and the Family Court recognize how difficult this can make things for parents and are working to try to come up with a resolution, but until it is fixed, Canada Revenue Agency requires that both parents have to pay child support to each other.
The Department of Justice provides a simple calculator to help you determine the amount of child support that will be payable. Family lawyers have more complex software that allows us to prepare more detailed calculations and factor in things like s. 7 expenses.
If your child is living in the ‘shared custody’ of both you and the child’s other parent, or if the client is over the age of 18 but still attending to a learning institutions, there are multiple facts to consider. In these situations speaking to a lawyer is the best way to determine what child support arrangements hsould be in place.
One parent having majority of parenting time
In an arrangement where one parent the children in their care more than 60% of the time, we will say they have the majority of the parenting time.
This does not mean that one of the parents is the 'main parent' or has more say in what happens to your children. It also doesn't mean that the schedule will never change.
If one parent has the children in their care more than 60% of the time, the other parent will be obligated to pay child support.
What Are Section 7 Expenses?
You may hear lawyers or judges talking about 'section 7 expenses' which we often write as 's. 7 expenses'. We're referring to s. 7 of the Manitoba Child Support Guidelines which sets out the 'Special and Extraordinary Expenses' that a court can order that one or both parents contribute to over and above the basic child support which is owing based upon the provincial table.
Section 7 expenses are:
Child care expenses incurred so the parent can work or attend school
Health related expenses over $100.00 per year
Extraordinary extracurricular expenses (but only if they are "extraordinary"
Post-secondary education expenses
Section 7 expenses are not the following (If one parent has primary care and control, that parent will be responsible for paying the following expenses. If the parents have shared custody, parents can decide how they are going to share these types of expenses, but they will not usually be shared by the court. Do not assume that the other parent will contribute to these costs unless they have already agreed to., and that agreement is written in the correct form):
Food
Clothing
School supplies
Gifts
Haircuts
What if I don't want child support?
Occasionally parents will make an agreement between themselves that they do not want child support to be paid. Your incomes may be fairly similar in a shared custody, you may have agreed to pay child support in a different method (for instance, transferring the equity in the family home) or you may have a very poor relationship with your child's other parent and not want to deal with their anger about child support.
While most things in family law are negotiable, child support is not one of them. If you want to get divorced, the court will require that the Child Support Guidelines are being followed. In a primary care situation, this will mean that the correct amount of child support be set based on the paying parent's income and number of children. ThisIn a shared custody situation, this may look differently, but will still need to ensure that both parents’ incomes are considered.
The reason for this is because child support is the right of the child and not the parent, and a parent cannot waive their child's right to be supported by their parents. If you attempt to finalize a divorce without setting child support. the court will not approve your application. Even if the parent paying support makes $20,000.00 per year and the other parent makes $200,000.00 per year, child support still needs to be paid.
It may be that some financial payments can be offset against child support, but only if done very careful and always ensuring that the Child Support Guidelines are followed. If you attempt to finalize a divorce without following the Child Support Guidelines. the court will not approve your application and will not allow you to be divorced.
Some people agree to set child support but do not enforce it and make the other party pay it. There is a risk to this though, because the child support is still owing even if they aren't collecting it, so if they change their mind in the future you may get stuck with a very large bill!
If you are paying or receiving child support without a formal document in place, or in an amount that is different than what a formal document requires, you ought to keep clear records of the amounts paid/received, and confirm that the payments are for child support (and not for some other expense). If you pay child support in cash, be sure to receive a written receipt signed by the other parent and stating the date the support was paid.
If you are considering not paying or not collecting child support, make sure you discuss the options carefully with your lawyer so that you can be protected, if possible, and/or understand how you may be impacted in the future.
When does Child Support end?
Child support ends when a child meets the definition under the Divorce Act that they are no longer a 'child of the marriage'. The definition is when a child is 'able to withdraw from the care of their parents'. Practically speaking, that usually means that the child is a) over 18 and b) not enrolled full time in post-secondary education. If your child has a disability that keeps them from being able to care for themselves, child support may continue indefinitely.
These questions can get complicated - what if the child is taking a year off between high school and university? What if they're only taking 2 classes this semester, but 4 next semester? What if the child is enjoying being a professional student and never graduating? What if your child decides to go to medical school and is still technically a student in their 30s? What if your child earns more during the summer than you earn in the entire year? The answers to these questions can vary greatly based on many different complicating factors. Your lawyer is the best person to talk to about these issues.