Following a separation or divorce when there are minor children involved, child support will inevitably become a key issue that must be determined, even in cases where both parents continue to have parenting time with the child. All parents have a legal obligation to provide support for their children before the child turns 18, and in some cases into early adulthood. However, the amount of support can vary considerably depending on a variety of circumstances, including:
The amount of support, whether set by an agreement between the parents or by an arbitrator or family law court in the event of a dispute, is guided by the principles and support table outlined in Canada’s Federal Child Support Guidelines (the “Guidelines”). Some exceptions may necessitate increasing or decreasing the table amount set out in the Guidelines, including situations where the amount would cause the payor parent undue financial hardship, or in cases where the payor parent earns an income over $150,000 per year.
Sometimes it will also be necessary for a court or decision-maker to impute an income to a parent under s. 19(1)(a) of the Federal Child Support Guidelines. Under this section of the Guidelines, a court is obligated to impute income to a parent in a variety of circumstances. One of those situations is when the parent is intentionally under-employed or unemployed, as follows:
[T]he spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse. [Emphasis added]
The emphasized portion of the section above indicates that in some cases, a parent may be unemployed or underemployed to provide care for a child in need, in which case they would be exempt from the imputation of income. However, this exemption has limitations.
Alberta is unique in that it also requires an element of bad faith or a deliberate attempt on the part of the payor parent to evade their support obligations to impute income. This was first outlined in a 2001 decision called Hunt v. Smolis Hunt in which the Alberta Court of Appeal held that to impute income to a payor parent, the “obligor has pursued a deliberate course of conduct for the purpose of evading child support obligations”.
In a recent decision called Spring v. Spring, the Alberta Court of Appeal confirmed a lower court decision to impute income to a father who was unemployed and acting as a stay-at-home father to two young children from his second marriage.
The parties had been married and had one child before divorcing in 2008. At the time, the father’s income was set at $125,000 per year and he was ordered to pay the mother child support in the amount of $1,098 per month. Soon after, the father unilaterally decided to reduce his monthly payment to $700. The mother had made repeated attempts to compel the father to disclose his financial situation, but he had not complied. By 2014, the father was in arrears totalling $19,892. The father had remarried in 2011 and he and his wife had two children. In 2015, the father lost his job, and he was unsuccessful in obtaining new work. In 2016, he stopped seeking employment and decided to stay at home full-time with his children.
The father brought an application to vary his child support obligation, which was ultimately dismissed by the Alberta Court of Queen’s Bench. The chambers judge found that the father had failed to establish that he fell within the s. 19(1)(a) exemption to the imputation of income, although he was a stay-at-home parent to two young children. The judge held that the exemption was not automatically extended by the mere fact that a parent had young children at home. The father had failed to establish that his children from his second marriage had any special requirements or other extenuating circumstances that required him to remain unemployed to care for them. The judge further observed that parents have an ongoing obligation to continue supporting their children, even when they may have other children as a result of a subsequent relationship.
Bolstering the court’s findings was the additional consideration that the father had repeatedly failed to provide disclosure of his finances including his severance package as well as various investments totalling over $2 million. Ultimately, the court imputed an annual income of $100,000 for the father as of 2016, reducing his original income by $25,000.
The father appealed the chambers judge’s decision, arguing that the judge had incorrectly applied the exemption requirements under s. 19(1)(a). The Alberta Court of Appeal reviewed the case and found no error of law, confirming that the right to an exemption under the relevant section of the Guidelines is not automatic or unlimited. The right to such an exemption must be determined on a case-by-case basis, with consideration of all the relevant factors in a specific case. In the case at hand, the Court of Appeal agreed with the findings of the chambers judge that a review of the situation “led to the “overwhelming conclusion” that the appellant intended to avoid or minimize his pre-existing support obligations”.
At Mincher Koeman, our family law lawyers are exceedingly experienced in matters relating to the determination of child support. We will always guide a client towards the most efficient and cost-effective method of resolving the matter, whether that means going to trial to seek a court order, or simply providing candid advice through amicable negotiations between the parties. We will take a big-picture view of the family’s circumstances to assess the most appropriate way forward for our client while prioritizing the best interests of the child or children involved. For assistance with any child support matter, contact our office for a consultation by calling us at 403-910-3000 or by contacting us online.
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