Child and Spousal Support. Some Case Law Examples.
Evita
Imputing Income
Meeting the Re-education Wants or Needs of the Former Spouse
Self-sufficiency
The Payor is not the Natural Father
Undue Hardship
Imputing Income.
In Hanson v. Hanson (1999, BCSC E006672) Madame Justice Martinson
stated the following:
In order to meet this legal obligation, a parent MUST earn what the
parent is capable of earning...There is a duty to seek employment in a
case where a parent is healthy and there is no reason why the parent
cannot work. It is no answer for a person liable to support a child to
say he is unemployed and does not intend to seek work or that his
potential to earn income is an irrelevant factor ... A parent's limited
work experience and job skills do not justify a failure to pursue
employment that does not require significant skills, or employment in
which the necessary skills can be learned on the job. While this may
mean that job availability will be at the lower end of the wage scale,
courts have never sanctioned the refusal of a parent to take reasonable
steps to support his or her children simply because the parent cannot
obtain interesting or highly paid employment. Persistence in
unremunerative employment may entitle the court to impute income. A
parent cannot be excused from his or her child support obligations in
furtherance of unrealistic or unproductive career aspirations. As a
general rule, a parent cannot avoid child support obligations by a
self-induced reduction of income.
In the Hanson family there were two children who were 20 years and 18
years old. Mr. Hanson had lost his job and was on stress leave. Not
only was he ordered to pay child support for two adult children but
spousal support as well though his wife was earning an income. Madam
Justice Martinson imputed the husband's income upwards but left the
door open to the wife to claim a reduction in her income if she gets
rid of her tenants.
This judgment has now become one of the mantras in the family courts.
However, this is seen to apply to the non-custodial parent, usually the
father, only. If the custodial parent, usually the mother, is not a
wage-earner, no matter what her earning capacity, the non-custodial
parent, usually the father, has to pay an amount that often far exceeds
the children's needs. In addition the wife is routinely awarded
spousal support as well.
In James v. James (1998, O.J. 130) The judge accepted the argument that
the payer father should have income imputed to him as he declined to
work the extra overtime that his employer offered and would no longer
work more than 55 hours a week.
In Dumont v. Dumont (2001 BCSC 1300) the judge admitted that Mr. Dumont
had "a diminished ability to earn an income in order to meet both his
expenses and his obligation to support the child" and went on to say
that: "He has a paramount obligation to find alternative employment or
income in order to meet the expenses of his child, for if he does not,
the burden falls fully upon the child's mother and inappropriately so,
in my view ... the husband had 88 sick days banked. ... He cannot
expect the child's mother to pick up the full burden or his diminished
responsibility when he had that asset on which he may call... "
In Hunt v. Smolis-Hunt (2001, 20 RFL (5th) 409 Alta CA) the payer
father had for several years engaged in an unsuccessful law practice.
Prior to that time he had worked as a civil servant in a non-legal
position making $55,000 a year. Justice Johnston imputed an annual
income of $55,000, concluding that
the father's "personal choice" to continue in the law practice "in the
face of repeated unsuccessful years...with no reasonable prospect for
future improvement ... is undervaluing his earning capacity." The judge
concluded that s. 19(1)(a) should be invoked in situations where the
payer "recklessly disregards the needs of his children in the
furtherance of his own career aspirations."
In Quintal v. Quintal (Ont. Gen. Div. Aug 22/97) the Court imputed an
income to the husband who had lost his job as "he could probably find
work as a security person or something along those lines "
In Stanghi v. Stanghi (2001 OCA 33161) the court imputed an income to a
disabled bricklayer because, according to the judge's opinion, "He is
capable of working in a supervisory capacity which would not require
the back stress of bricklaying"
In Roberts v. Roberts (2002 NWTSC 11) the judge imputed an income to an
incarcerated father though his children were already adults and ruled
that "child support arrears during the father's incarceration cannot be
cancelled"
Meeting the Re-education Wants or Needs of the Former Spouse.
The man will have to support his ex-wife if she wants to upgrade her
skills:
In Polson v. Polson (2000 BCSC 1477) the court ruled that a woman, who
has a grade 10 education and "some marketable skills" and walks out
with $629,500 in cash and $55,000 in RRSP, has "suffered an economic
disadvantage in that she has not been able to obtain the benefits of
work experience, training and job security during the marriage"
No questions asked if she ever had wanted to obtain the dubious
"benefits". The judge continued: "she will require spousal support for
several years, as well as child support for one adult daughter, with
the support level reflecting the husband's $60,000 annual [imputed]
income and the income which she ought to earn from the $450,000 she can
anticipate investing from her share ..."
The father was also ordered to shoulder the estimated $12,600 shortfall
in the children's tuition fees.
One is left to wonder what disadvantages did Mrs. Polson suffer from
the marriage. All the evidence points to the fact that she reaped
unprecedented advantages from it, as well as from its breakdown. Just
like Mrs. Adams, Mrs. Miglin, etc.
In Graham v. Graham, (2001, BCSC 1527) where the husband was severely
disabled and had a new family to support on his disability pension the
judge ruled: [79] "Mrs. Graham continues to be in need of spousal
support and I am not prepared to fix a time for it to end. She needs to
take training for the workforce but her approach to training is casual
and unrealistic. She has taken the occasional course at University
College of Fraser Valley in past years but has not yet qualified to
pass her first year there "...
[86] "I order spousal support of $1,250.00 monthly commencing November
1, 2001. I fix that amount on the understanding that Mrs. Graham may
have schooling costs as a result of enrolling in the College."
To show what a thoroughly decent chap he is the judge continued: [87]
"I shall not order that the support be retroactive to the date of the
Application or the date of the Hearing for two reasons:
1. The plaintiff did not disclose that she was living in a common-law
relationship with Ms. Barlow and had been for years. That information
came to Mr. Graham very shortly before the Application was heard. That
was relevant evidence and should have been produced, seasonably ...
2. Mrs. Graham did not inform Mr. Graham that Joshua was not taking any
schooling after June 1997 and he continued to pay support for him from
October 1997 until May 1999, when he need not have."
How very decent of him not to order retroactive support.
However, when the former husband wants to upgrade his skills he will
have an imputed income. Even his student loan will be seen to be an
income.
In Razavi v. Aavani [1998] B.C.J. No. 1885 (S.C.) the court imputed
income to the father in the full amount of his student loan and grant.
In Fahel v. Fahel ( 1997, BCSC D 38400) income was imputed to a father
who had voluntarily given up work and gone back to school. Although s.
19(1)(a) provides that reasonable educational needs of the spouse may
be a reason not to impute income the Court found that the timing of the
return to school was inopportune.
In Drygala v. Pauli, (2002 OCA C36273) the Ontario Appeal Court imputed
an income to a father though the judges admitted that "the father's
decision to enter university was the right decision as he was no good
at his job and had proven that he was doing well academically but that,
in the opinion of the learned judges, he should be able to work and
study so that he could pay child support to the mother."
It is not mentioned if the mother is employed or if she is ordered to
seek employment.
Self-sufficiency.
In Bracklow v. Bracklow [1999] 1 S.C.R. 420 by McLachlin J. at para.
37: "While the law has evolved to accept compensation as an important
basis of support and to encourage the self-sufficiency of each spouse
when the marriage ends, where compensation is not indicated and
self-sufficiency is not possible, a support obligation may nonetheless
arise from the marriage relationship itself"
What would be the "relationship" that warrants a pension that a man
has to keep on paying even after it is finished? Men might soon learn
that it is cheaper to get it from a freelancer.
In Wright v. Wright (2000 BCSC 1463) the court ruled that "That aside,
it is not for Alan Wright to dictate a career choice to his former
wife. He has a challenging job, and it is reasonable that Dawn Wright
should be given an equal crack at more fulfilling work. "
One is left with the question: what about all the men who are ordered
to take any work available so that they can continue to pay their
former wives who may not even be in any need.
Adams v. Adams (2001 OCA C33776) Mrs. Adams is a qualified nurse. She
chose not to practise her profession during the marriage. After the
divorce, first the trial court judge, and then the judges at the appeal
court, decided that she was entitled to stay out of the paid labour
force and that her former husband had to continue to support her as he
had done so during the marriage.
There is a shortage of nurses in Ontario, her children are in their
teens and twenties. She would have no difficulty in finding employment.
In Imrie v. Imrie (2001 BCSC 1443) the father asked that the mother
have her income imputed as she was capable of earning. They were
separated with the daughter, born in 1985 (16 years old at the time of
the trial), living with the mother, and the son, who was born in 1990
(11 years old at the time of the trial), living with the father. The
judge refused to impute her a salary because she had diabetes and was
suffering from stress [see above what a father who suffers from stress
is told]. She got both spousal and child support, and the judge divided
the assets 60/40 in her favour. "Stress" and "depression" are
by far the most common excuses that women present when they want to
stay out of the labour force. They also are ailments that are open to
capricious claims as the diagnosis is often subjective and need not be
based on solid scientific evidence.
In Miglin v. Miglin (2001 Ont. C.A.) The judges determined that Mrs.
Miglin, though she was well qualified for any job in the hospitality
industry and the children no longer needed a caretaker, should continue
to be supported by her husband, indefinitely.
This case has now been heard in the Supreme Court of Canada (Miglin v.
Miglin , (2003-04-17) SCC) Present: McLachlin C.J. and Gonthier,
Iacobucci, Major, Bastarache, Binnie, Arbour, . The court found (with
LeBel and Deschamps JJ dissenting) that "Ms. Miglin is an educated
woman with employable skills who worked in the business throughout the
marriage. Although she is no doubt responsible for the day-to-day care
of the three children residing with her [the eldest child chose to live
with the father], she has previously demonstrated her willingness to
engage child-care services. The parties dispute whether Ms. Miglin
attempted to pursue any employment. What is clear from the
correspondence between counsel during negotiation of the agreement,
however, is that Ms. Miglin had no intention of working.
The only real changes we see are the variation of the child support
award in accordance with the Guidelines and the fact that the eldest
child is now residing primarily with Mr. Miglin. The quantum of child
support established in the Agreement provided Ms. Miglin with a minimum
amount of income in contemplation of her not working. Her lawyer, in a
letter to Mr. Miglin's counsel, states: "She is clearly not going to be
working. Taking care of the children is a full time job at this time.
It does not change the nature of the spousal support release
anyway...." Furthermore, the correspondence makes it clear that Ms.
Miglin contemplated a reduction in income when the Consulting Agreement
ended and was advised by her accountant to plan ahead for this drop in
income. In our view, the change to the obligations regarding child care
did not take Ms. Miglin's current position outside the reasonable range
of circumstances that the parties contemplated in making the Separation
Agreement.
At the Court of Appeal, counsel for Ms. Miglin suggested that her
financial position deteriorated after the breakdown of the marriage.
The record demonstrates (and she concedes), however, that her net worth
in fact increased by at least 20 percent ... There was no evidence that
the terms of the agreement resulted in conditions under which Ms.
Miglin could not assure her family's livelihood and had to deplete her
assets, thus bringing her outside the range of circumstances in which
she pictured herself at the time of executing the Separation Agreement.
For the reasons discussed, we would reverse both the decision of the
trial judge and that of the Court of Appeal with respect to the
application for spousal support. In these circumstances, both courts
erred in giving the parties' agreement insufficient weight. On this
issue, therefore, the appeal is allowed. With respect to the reasonable
apprehension of bias, we would affirm the decision of the Court of
Appeal. Given the result, we do not find a cost award to be appropriate
in this Court. The parties shall bear their own costs."
In Vanderwal v. Vanderwal (2001 BCSC 613) the judge said: "I will not
attempt to engage in any serious analysis of the husband's claim. I do
not accept that the calculations are necessarily accurate. In any case,
in my view, the analysis is a tortured one. It depends on a number of
assumptions, including the wife's life expectancy and of course it
ignores the fact that the wife has used the capital advanced under the
agreement to purchase a home and to finance many of her living expenses
over the last few years. In other words, there is no notional fund of $
500,000 which is earning the interest referred to.
More importantly, I believe that if an award of costs is made against
her, it would significantly compromise her ability to establish a
secure future for herself. She is an older, vulnerable woman. The
balance which has been achieved by the final award ought not to now be
disturbed by an award of costs against her"
So, she's spent it, give her more!
In Chambers v. Chambers (2001 BCSC 630) the "addicted to shopping"
wife had siphoned $250,000 from the husband's business account to her
personal account and duly spent it in a matter of a year and a half.
After the marriage ended in divorce, she increased her debts on her
credit cards though the husband was paying her $16,100 a month spousal
support on interim basis.
Judge Hutchinson ruled that "the husband can only blame himself for
allowing her to manage the finances, knowing her inability to control
her habits."
He also ruled that "as she could not be expected to support herself on
the same level as she had become accustomed to during the marriage, he
should be paying her $14,000 a month until she becomes self-sufficient,
after which the monthly support will be reduced to $12,000."
He further ordered that he pay her $250,000 in equalization payments,
rather than that she pay him the monies that she had pilfered from his
business.
The Payor is not the Natural Father.
The Ontario Appeal Court in Kreklewetz v. Scopel (June 2002 C35903)
ruled that "although a mother knows the identity of the father, the Act
contemplates that she may still not acknowledge him as the father.
Because acknowledgement involves a volitional act of admitting
knowledge of a fact, it is possible for a person to acknowledge
something to be true in one context, but to decline to do so in another
context."
In Hautala v. Hautala, (1997, Ont. Gen. Div.) mother had 3 children
during cohabitation with father. Blood test showed one was not his. He
had one child in another relationship for whom he was paying $300 per
month support.
Court held the table amount for 4 children to be $930 and that where a
person was not the natural parent it could order such amount as it felt
appropriate. Here court ordered $600 per month for his natural children
and $30 per month for the 4th child.
Coupled with his other natural child the total support payments to the
two mothers by the father came to $930 - the amount the table shows as
the obligation for 4 children.
In Wright v. Zaver (2002 ONCA C34650) the father was ordered to pay
child support though there was a binding agreement that the mother
would not seek support after the initial lump sum payment if the father
did not seek access. When the mother and the stepfather divorced the
mother applied, and got, support from both men.
Innovative and pro-active, indeed.
Undue Hardship.
The fact that the standard of living in his new household was lower
than that of the household in which his first 3 children lived did not
automatically qualify as "undue hardship". The choices that he and his
new wife made, while understandable, were within his control and he
could not refer to them as the grounds of his hardship in order to
reduce the support to the children of his first family.
Case law leaves no doubt that if the mother is the payor parent she
will have more success than if the father is the payor.
Rosalie Abella wrote for an unanimous court in Francis v. Baker, March
10, 1998, [1998] O.J. No. 924, (Ont. C.A. ) Abella, Austin, Charron,
JJ.A.: [para41] "It seems to me that s. 10 is the primary section
offering relief from the Table amount, but it is only available where
severe financial consequences flow from the application of a facially
neutral Table amount. If debts, other legal support obligations, or the
expenses of exercising access, create an undue burden on the paying
spouse, there is a discretion to reduce the amount of child support
payable."
[para42] "It is worth noting, however, that under s. 10(3), no
reduction will be ordered where it creates a higher standard of living
in the payor's household than in the recipient's. From this, one can
logically infer that the intention of the Guidelines is to give primacy
to the financial needs of the child's household, not the payor's. ...
Even in the face of other legal obligations, the payor is not permitted
to reduce the Table amount to an extent that it gives his own household
a financial advantage over that of the children."
[para43] "This section reflects two economic aspirations of the
Guidelines, neither of which enjoyed universal application before the
introduction of this new statutory support scheme. The first is that
the needs being addressed are those of the child's household, not only
the economies of an individual child. This is a significant and, in my
view, long overdue reform."
Abella and Charron are now Supreme Court of Canada judges.
In Martin v. Gerard, June 16, 1997, [1997] O.J. No. 2517, (Ont. Gen.
Div.), judge Kozak allowed a non-resident mother with less than ½ of
the income of the resident father to pay no child support. In Petrocco
v. Von Michalofski, January 16, 1998 , [1997] O.J. No. 200. (Ont. Gen.
Div.), judge Monique Metivier made a similar ruling. She wrote:
"Further, having regard to the mother's historical role as primary care
giver and the need of the children to have her re-instated as an
important parental figure, and to the fact that the children in this
family have a lifestyle of luxury in the custodial parent's home, the
expenses required for a realistic exercise of access will be unusually
high. It is clear that the mother's access should be expanded
considerably so that the children will spend more time with her. In
this case, the access parent's role and the importance may be
detrimentally affected by an inability to offer the children a
reasonable level of activity and comforts relative to that enjoyed in
their primary residence. Payment of support at the guideline level will
interfere with the ability of the mother to provide such activities and
comforts"
Judge Claire L'Heureux-Dubé said about the guidelines: "The purpose
of the guidelines is to enhance the child's post-separation standard
of living to approximate, as far as possible, what that standard would
have been had the parents not separated "
In Camirand v. Beaulne (Ont. Gen. Div. May 15/98) judge Aitken
(Ontario) ruled that it was shown that "combined income of the father
and his new wife was considerably less (after the support payments,
less than half) than that of his former wife and her new female
partner, who also has a child. The father and his new wife have a child
to support. The court noted that he was suffering economic hardship,
but refused to reduce the amount of support. According to the learned
judge, the father and his new wife knew his responsibilities to his
first family when they married and had a child. The fact that the
standard of living in his new household was lower than that of the
household in which his first 3 children lived did not automatically
qualify as "undue hardship". The choices that he and his new wife made,
while understandable, were within his control and he could not refer to
them as the grounds of his hardship in order to reduce the support to
the children of his first family"
In plain English: As per the Recommendations on Child Support by
Federal/Provincial/Territorial Family Law Committee in January 1995 the
children who no longer reside with the father, and whom he may never
see as they may be alienated from him by being told on a daily basis
that their father does not contribute anything to their welfare, are
more deserving than those who live with him and therefore have go
without. Only if the mother of those children also separates from him
and takes the children away are his responsibilities to them
recognized. Even then the children of the first marriage have priority.
In Jackson v. Holloway (997 SJ. No 691) McIntyre J. said: [19] "As far
as the respondent argues he cannot afford to pay the table amount of
support given his new family unit this cannot constitute undue hardship
without identifying and establishing a specific basis for a claim of
undue hardship....A separated spouse with a child support obligation
enters into a new family unit knowing he or she has an obligation and
is expected to organize his or her affairs with due regard to that
obligation. A general or generic reference to the overall expense of a
new household will not give rise to a claim of undue hardship. To
permit such a claim would in many instances mean that if the claimant
could establish a lower standard of living then a claim to undue
hardship must succeed. This is not the test."
In Messier v. Baines (997 S.J. No. 627 (U.F.C.)) the court ruled: [10]
"These objectives will be defeated if courts too readily deviate from
the presumptive rule set out in s. 3 of the Guidelines absent
compelling reasons for doing so. Second families, and the associated
legal duty to support a child of that family, are not uncommon. The
assumption of such new obligations may by necessity create a certain
degree of economic hardship. That hardship is not however necessarily
"undue". Similarly, the mere fact that an applicant's household
standard of living is lower than that of the other spouse, due in part
to the applicant's legal duty to another child, does not automatically
create circumstances of undue hardship"
[17] "It is evident from these authorities that the burden of
establishing a claim of undue hardship is a heavy one. We agree with
the comment of Wright J. that the objectives of the Guidelines will be
defeated if Courts deviate from the established guidelines without
compelling reasons. The hardship must be more than awkward or
inconvenient. It must be exceptional, excessive, or disproportionate in
the circumstances. Further, it is not sufficient that the payor spouse
has obligations to a new family or has a lower household standard of
living than the payee spouse. The applicant must specifically identify
the hardship which is said to be undue. A general claim regarding an
inability to pay or a generic reference to the overall expense of a new
household will not suffice"
In McArthur v. McArthur, 1999 CanLII 5598 (BC S.C.) the defendant
father seeks a variation of a child support order made December 6, 1993
which obligates thim to pay the amount of $500.00 per month for the
support of the child Kevin, born January 16, 1983. Based on his income
of $72,161.00, the defendant's Guideline responsibility for Kevin would
be the sum of $587.00 per month. The plaintiff mother wants the father
to pay the guidelines amount.
In addition, that order provided that the parties share the reasonable
living costs of the child Michael, born January 25, 1974, not covered
by his earnings or income available from an education fund.
Judge Melvin: "As to the Guideline maintenance in the amount of $587.00
per month, the defendant opposes that allocation based on the undue
hardship provisions found in s. 10 "
3) "Despite a determination of undue hardship under subsection (1), an
application under that subsection must be denied by the court if it is
of the opinion that the household of the spouse who claims undue
hardship would, after determining the amount of child support under any
of sections 3 to 5, 8 or 9, have a higher standard of living than the
household of the other spouse."
(4) "In comparing standards of living for the purpose of subsection
(3), the court may use the comparison of household standards of living
test set out in Schedule II. The defendant's submission pursuant to s.
10 is based on his obligations to his present wife and her three
children of a prior marriage who are not financially independent. ..."
The the gender biased judicial education comes out loud and clear in
the following: "According to the plaintiff, she supports Michael at the
rate of $100.00 per month. The defendant supports Michael according to
his property and financial statement at the rate of $380.00 per month,
plus a questioned amount for Michael's 1979 motor vehicle."
In short, we are to accept the woman's word alone while the judge casts
some doubt about the veracity of the father's claim.
The judge demonstrated his his bias when he determined that the total
income in the mother's household was $123,807 (including tax free
child support of $6,000 from the defendant for one child); and in the
father's household it was set at $106,261 (including $ 10,500 tax
free child support for his partner's three children. No deduction is
made for the $6,000 that he pays to the mother of his younger child or
the additional $380 monthly ($4,560 annual) paid for the "living"
expenses of the older adult son, as well as his vehicle related costs).
Thus we need to deduct a further $10,560 of the available taxable
income in the father's household (not including the costs of
child's motor vehicle which are paid by the father), as well as a
claimed, but not verified, $1,200 from the mother's household. Thus
the final difference is, at the minimum, $26,906 in favour of the
mother without considering her tax advantage, rather than the stated
$17,500.
Curiously the judge further accepted that the father has an obligation
to support his partner's three children but did not mention that, for
the sake of equality, the mother's new partner also has an obligation
to support her children.
The Judge continued: "Parliament has outlined s. 10(2) circumstances
that may cause a spouse or child to suffer undue hardship. These
provisions are not restrictive nor does their existence necessarily
mandate a conclusion that undue hardship exists. In my view, the
existence of one or more of those factors is not determinative of the
issue. The proper course is to determine whether or not any of the s.
10(2) factors exist or any other factors, which might create undue
hardship, then consider whether that factor or those factors, in the
context of the finances of the parties, creates undue hardship. In the
case at bar, despite the income tax ramifications of a variation to
accord with the Child Support Guidelines, I am not satisfied that the
defendant will suffer undue hardship within the meaning of s. 10. In
this respect the applicant seeking a [sic] undue hardship determination
carries the burden of proof. Financial difficulty, budgetary cutbacks,
restraints, or financial re-evaluations do not equate with undue
hardship.
However, where the payor parent is the mother judges invariable rule
that the above create undue hardship, if fo no other reason that for
the fact that children will be able to compare the different standards
of living" (see Petrocco v. Von Michalofski above).
"The plaintiff's [mother's] application is allowed with the
maintenance set pursuant to the Guidelines in the amount of $587.00 per
month with reference to child Kevin, with the first such payment to be
June 1, 1999. The status of the shared expense issue is referred to the
Registrar. Each party will bear their own costs."
Judgements? Yes. Justice? No.
Shared Custody.
The judges are prepared to go to any lengths in their creativity and
innovation in order to hand the victory to the woman:
In Meloche v. Kales, Ont. Gen. Div. (Oct. 3/97) the court observed that
"Child had been living with mother but now attended private school
where he lived throughout the week. Alternate weekends were with father
and 2 non-consecutive weeks during the summer. Father claimed this
represented over 40% of the time and the support should be reduced
under s. 9 dealing with Split Custody. Court held that just because the
child spent about the same time with each parent didn't mean it
qualified as "split custody" because the 40% meant the portion of the
total custodial time presuming that the custodial parent started with
the full 100% of that time."