Child support is often calculated by applying a payor’s income, typically their line 150 income, and then analyzed pursuant to the Federal Child Support Guidelines. However, and increasingly a present issue for the clients seeking our assistance is the circumstance where a payor of child support is not accurately representing what their income is and not paying the correct child support obligation that reflects their standard of living.
Imputation of income for purposes of calculating child support is a discretionary remedy available that will set a higher amount of child support to be paid than what then would automatically be automatically payable pursuant to self-reported income of the payor. This imputed income and child support obligation monthly amount payable can then be used to calculate child support obligations until such time that the payor can provide evidence to rebut the imputed value assigned by a decision making either at the Provincial Court of Alberta, Court of Queen’s Bench of Alberta, or privately retained arbitrator.
In the recent Alberta Court of Appeal decision Sochowski v Sochowski, 2020 ABCA 59, the Court of Appeal affirmed existing Alberta case law for imputing income pursuant to section 19(1)(a) of the Federal Child Support Guidelines. In this case the Court of Appeal through its analysis as often decision makers are required to in this area, assessed whether the appellant was “deliberately” unemployed to avoid paying child support. The Court of Appeal found that the evidence on record did not support the lower court’s finding that there was a deliberate course of conduct to evade child support. This decision reinforces the Alberta Court of Appeal’s previous interpretations of section 19(1)(a) of the Child Support Guidelines originating from foundational cases such at: Hunt v Hunt-Smolis, 2001 ABCA 229 and DBF v BF, 2017 ABCA 272.
The starting place for imputing a payor’s income is section 19 of the Child Support Guidelines. This section permits the imputation of income to a spouse as it considers appropriate in the circumstances. Specifically, in Alberta, the circumstances must permit the inference that the payor took unreasonable actions to undermine or avoid his or her support obligations. The onus is on the recipient of child support to prove, on a balance of probabilities, that the payor is deliberately unemployed or underemployed to avoid their child support obligations.
Of critical importance in Sochowski, is the Court of Appeal’s emphasis that the test for determining the appropriateness where imputation of income is to occur is the clarification that there the arguably difficult evidentiary burden of a finding of “bad faith” on behalf of the payor need not be established. Rather, the Court of Appeal instead sets forth that presence of evidence that the payor engaged in a deliberate course of conduct to evade child support is sufficient and shall form the basis of analysis.
How does this compare to other Canadian Jurisdictions?
With the clear direction set forth in Sochowski, Alberta Courts have now adopted a different interpretation of section 19(1)(a) than other jurisdictions in Canada. In almost every other province in Canada, Appellate courts have adopted a reasonableness standard for imputing income under section 19(1)(a). The reasonableness standard directed decision makers to impute income by assessing a payor’s earning capacity, which emphasized a more contextual analysis which considered the payor’s individual characteristics such as: age, education, work history, health, etc.
To learn more about your rights and obligations concerning child support, please contact us today for a free consultation with our experienced family lawyers on your matter by calling our office at 587-392-7970 or emailing firstname.lastname@example.org, or by clicking on our consultation page.