The uncertainty left in the world by the Corona Virus is directly affecting businesses and the stability of many employments. As a result of this, employees are starting to work on a limited number of hours or, even worse, are losing their jobs. This new reality can economically affect not only people’s life, but also their obligations towards their children, specially the payment of child support.
When analyzing the request for payment of child support, the Court should consider several factors, such as the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought. As established in the Federal Child Support Guidelines, the amount of a child support order for children under the age of majority can vary depending on the province in which that spouse ordinarily resides at the time the application for the child support order.
The judge must calculate the payor’s guideline income in order to determine the amount of child support that should be granted. This can be done using information provided on the last filed Income Tax Return, however, it is possible that the spouse could have lost their job or know that they will be earning less than the amount reported on their last Income Tax Return. In this situation the judge can estimate how much money the parent will be earning in the current year based on evidence like letters of employment.
- But, if a parent is unemployed or underemployed, are they still obliged to pay for child support?
If the parent is unemployed, under-employed or working on a reduced number of hours intentionally, it is possible for the Court to impute such amount of income to them as it considers appropriate in the circumstances, based on section 19 (1) (a) of the Federal Child Support Guidelines.
In Hunt v. Smolis-Hunt, 2001 ABCA 229, the Alberta Court of Appeal stated that it is necessary to analyze if there is some evidence of “bad faith” prior to imputing income to the spouse based on the rule of s. 19(1)(a):
“42 The section should be interpreted to impute income where the obligor has pursued a deliberate course of conduct for the purpose of evading child support obligations. We read the section as requiring either proof of a specific intention to undermine or avoid support obligations, or circumstances which permit the court to infer that the intention of the obligor is to undermine or avoid his or her support obligations.”
As recognized by the Court, the test for imputing income should be one of “reasonableness”. If the payor in under-employed because of educational or health needs of the payor or the needs of infant children, the under-employment may be acceptable. In order words, the Court held that there must be an intent to evade child support obligations before income can be imputed.
Following the same line of reasoning, in Bryon v. Bryon, 2006 ABQB 712, the Alberta Court of Queen’s Bench established that, since there is no evidence that the spouse has made his career choices to undermine or avoid his responsibility to his children, the court should not impute income to him.
In Mercer v. Mercer, 2004 ABQB 551, the Court held the position that the intent to avoid the payment of child support “could be inferred as the logical consequence of a father’s lack of motivation in seeking employment”. In the case mentioned, the father did not provide the Court with a reasonable explanation for his unemployment or provide evidence of any attempts to seek employment.
Overall, if there is evidence of intent to avoid the payment of child support, such as lack of effort to seek employment, the Court can impute income to the spouse if he is unemployed, under-employed or working on a reduced number of hours.
- Can a parent judicially reduce the amount that they are paying for child support due to lost of employment?
If the circumstances in the spouse’s life have changed after an order of child support payment has been granted, it is possible to require reducing the amount of child support obligations. Different unexpected situations can substantially affect the income of the payor and cause a financial hardship, such as an accident that makes the parent incapable to work or even the lost of the job due to an economic recession.
In Petrunia v. Petrunia, 2012 ABQB 568, the Alberta Court of Queen’s Bench recognized that it is possible to have child support payments reduced considering the change of situation, such as if the payor has an employment terminated or lost their job because of economic downturn.
In Ghoul v. Habhab, 2011 ABQB, the Court reduced the amount of child support in light of the father’s medical problems arising from a motor vehicle accident, which made him unable to work full-time during a certain period of time.
However, on the other hand, if the amount of child support is already minimal and the spouse could be earning more income, the Court may deny the application for reducing child support obligation, like was done in D. (G.A.) v. D. (G.), 1995, Alberta Court of Queen’s Bench.
Considering the current economic situation in the world, the Court may grant a reduction in the child support obligations if it is proven that some extraordinary change is affecting the spouse’s ability to pay the total amount of child support that was priorly granted.
Please contact our experienced Family and Divorce Lawyers at 403-476-2011 or [email protected] to discuss your case. We are currently offering a promotional rate of $99 + GST for all family and divorce related initial consultations up to one hour.
Carolina Albuquerque is a lawyer in Brazil who is currently pursuing her legal career to become a Canadian lawyer in the future. She has been accepted to the Law Program at the University of Calgary and will start her legal education in Calgary soon. She was a member of the team of lawyers that acted directly on Brazil’s greatest case of judicial bankruptcy, the one from Oi S.A, the third largest telecommunication company in Latin America. She is involved in volunteers programs that provide support for women. Her professional communication skills include a fluent level of English, advanced level of Spanish and native level of Brazilian Portuguese.
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