Mehling v. Mehling Manitoba Court of Appeal 2008 – Determining whether the 40 per cent threshold has been met

Although this case comes from the Manitoba Court of Appeal, its relevance extends all around the country, including Ontario. Mehling deals with the controversial issue of how a court should determine whether a parent has met the 40 percent threshold under section 9 of the Manitoba Child Support Guidelines. Section 9 states the following:

“Where each parent exercises a right of access to, or has physical custody or care and control of a child for not less than 40 percent of the time over the course of a year, the amount of child support order must be determined by taking into account:

  1. the amounts set out in the tables for each of the parents;
  2. the increased costs of shared custody arrangements; and
  3. the condition, means, needs and other circumstances of each parent and of any child for whom support is sought.”

Therefore, if a court deems that the parties in a particular case are involved in a shared custody arrangement, the issue of child support will be treated very differently than a case in which one party has primary residence of the children.

In Mehling, the parties had two children and the motions judge determined that the children spent “not less than 40 percent” of their time with their mother. In essence, the motions judge determined that the parties were involved in a shared custody arrangement. The motion judge reached his conclusion by calculating the number of days that the children spent with their mother and father. Based on his calculation he found that the children spent approximately 147.5 days per year with their mother and the rest of the time with their father. This meant that the children spent approximately 40.4 to 43.7 per cent of their time with their mother.

The father appealed the decision of the motion judge arguing that the judge erred by calculating time in days rather than hours. Basing the calculation on hours, the father argued that the mother only had care and control of the children for 37.62 per cent of the time. The mother argued that the judge was correct to base his calculation on days and not hours. Furthermore, the mother argued that the judge’s approach and conclusion was entitled to deference.

The appeal judge began his analysis by highlighting the fact that the Supreme Court of Canada has not provided guidance with respect to the 40 per cent threshold issue. As such, there has been conflicting jurisprudence, some case law stating that the calculation should be done in one way and other cases positing that the calculation should be conducted in another way. As such. this issue has generated a considerable amount of litigation.

The appeal judge concluded that it was more reasonable to calculate time based on days rather than hours. However, in the same breath, the appeal judge stated that the assessment of time was ultimately in the judge’s discretion. The appeal judge went on to say that it is necessary for the judge to explain the approach used and the factors considered. As long the judge has utilized a reasonable approach and accurately assessed the evidence, his conclusion is entitled to deference. The appeal judge concluded that the motions judge gave careful consideration to the evidence before him and that his reasons demonstrated that his approach was reasonable. As such, the appeal judge upheld the decision of the motions judge and dismissed the appeal.

This Post Has One Comment
  1. I agree with the Manitoba Court of Appeal decision. Sometimes parties will get bogged down in trying to calculate the precise amount of time a child spends with each parent. I do not think this is a fruitful exercise. It wastes court time and resources. My general approach is counting the number of nights the children spend with each parent over a two week period, rather than reviewing hours.

    My opinion on this is that generally where a parent has the children staying at their home at least 6 out of 14 nights there is associated costs relating to same that may justify set-off child support. During the work week the parent with the children must provide dinner the night of the sleepover and prepare breakfast and pack a lunch for the next day regardless of how many hours they spend with them in the evening/morning.

    I am glad that the Manitoba Court of Appeal did not overturn the motion judge in this matter in over to endorse the hours approach, but do wish they had more solidly endorsed the hours approach rather than stating it is an issue at the discretion of the motion judge. Really what we need now is a ruling from the Supreme Court of Canada on this issue.

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