The British Columbia Court of Appeal held that a deliberate intent to evade child support obligations is not required in order to impute income to a spouse under s.19 of the Federal Child Support Guidelines [the “Guidelines”]. Further, the court clarified that childbirth does not automatically fall under the “needs of the child” exception set out in s. 19(1)(a) of the Guidelines. Finally, the court determined that it was inappropriate to fix a period of non-imputation based on the duration of maternity leave programs.
A mother, who had been ordered to make child support payments for children of a previous relationship, subsequently elected not to work. Instead, the mother chose to remain at home in order to care for a newborn child and her two-year old sibling. In determining whether to impute income to the mother under s.19(1)(a) of the Guidelines, the court rejected the Alberta jurisprudence requiring a finding of bad faith. The court also held that it was inappropriate to base the period of non-imputation on the duration of maternity leave programs: to do so would not take into account the positive obligation of a parent to support a child. While benefit schemes shift the burden of caring for children onto the employer or the public, child support payments shift the burden onto the payor parent. Further, not everyone is eligible for maternity leave programs, and neither can everyone afford the reduction in income that comes with such benefits. Finally, the court affirmed that a period of unemployment or underemployment is reasonable after childbirth. However, childbirth does not automatically exempt a parent from paying child support. The court affirmed that the circumstances of each situation must be evaluated on the criteria adopted in Watts v. Willie, and that any period of non-support must be reasonable.
September 22, 2011
Link to Decision
Fidelia Ho & Steve Holinski
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