Calculating Child Support – Past or Current Income?
In the decision of L. (R.E.) v. L. (S.M.), 2007 ABCA 169 our Court of Appeal tackled the issue of how child support obligations are to be calculated; whether on the payor’s current or past year’s income. In this case the parties were married for six and half years and had two children which were ages 11 and 13 at the time of the decision. Shortly after separation the appellant father was ordered to pay child support of $433 per month, which was based on an income of approximately $33,000. The father paid this monthly amount from September 1999 until February 2002, where he increased his payments to $500 per month. In April 2005, the father once again increased his monthly payment to $612. It is to be noted that these increases were not Court mandated but yet were voluntarily increases due to the father having an increase in income. The dispute then arose when which years income should be used to calculate child support. The current year or the past years?
In reviewing the initial decision made by the chambers judge our Court of Appeal found that while the evidence was limited it can be inferred that informal requests for increased child support had been made by the mother in the summer of 2005. However, the father failed to disclose his increased income and engaged in “blameworthy conduct” by not adjusting his child support payments to reflect his increased income.
The Federal Child Support Guidelines set out provisions regarding income and income information. Specifically, Section 16 directs that annual income the basis upon which child support is payable is determined by using the sources of income set out under the heading “Total Income” in the T1 General form issued by Canada Customs and Revenue Agency. However, Section 16 does not make reference to which year is to be considered.
Paragraph 17 and 22 of the decision states:
- “Looking at the words of the Guidelines in context indicates that in most circumstances, the payor’s current income is to be used to determine the amount of child support. The Guidelines do not state the past year’s income is the basis for calculating support. Section 16 could have, but does not define annual income as income stated on the previous year’s income tax return…”
- “The appellant is correct that the Guidelines strive to achieve a simple and certain means of calculating income to determine child support. But he overlooks the ultimate objective, fairness, in his proposal that past year’s income, as reflected by line 150 of the payor’s income tax return, determine the level of child support for the following year. That approach will often sacrifice fairness for efficiency and certainty. The child is entitled to be supported according to the payor’s current income, if ascertainable, and if not, by a reasonably accurate estimate of the payor’s current income with an adjustment at year’s end once the actual income is known.”
It was ultimately held that when calculating child support the current year’s income should be used.