What happens when a parent decides to be a “stay-at-home-parent” for the infant child of a new marriage and, due to this “unemployment,” is unable to pay child support for the children of the former marriage? Our top rated* Vancouver child support lawyers are pleased to explain this issue and issues involving underemployed spouses to you. Call us toll free at 1 877 602 9900.
The BC Court of Appeal recently announced its decision on exactly this question. In Koch v. Koch, 2012 BCCA 378, the parties had two children in the marriage who had been residing with their mother since the parties’ separated. The father then entered into a new relationship and had a third child. The father then lost his job and he and his new partner decided that he would be a “stay-at-home dad.” In addition to his desire to be a “stay-at-home-dad”, he also claimed he also suffered from anxiety and depression, which impacted his ability to work. The mother claimed that none of this should excuse the father from his child support obligations to his two children from the first relationship, and ultimately the Court agreed.
While this might seem to be the obvious outcome, it is not always as simple as that. Section 19(1)(a) of the Federal Child Support Guidelines provides an allowance that has been confirmed in Earle v. Earle, 1999 BCSC 283 as:
… where the payor parent’s unemployment or under-employment is due to his or her full-time or part-time care required for his or her children of the second family, income should not be imputed for the purposes of calculating child support obligations to the first family.
(Imputing income simply means that the Court treats the parent’s income as if it is more than what the parent is actually earning. So, if a Court determines there is no good reason for a parent to be unemployed, underemployed or earning less than what he or she was previously earning, the Court can decide that a certain amount of additional income should be “imputed” to that parent and can make an Order for child support based on that “fictitious” income amount.)
However, the Court of Appeals confirmed the decision of the lower Court that:
[20] … the law in Earle was not without qualification. The judge acknowledged that it would not be unreasonable for one or other of the parents (of the appellant’s child of his second marriage) to take a maternity or paternity leave. But the judge did not agree that such an arrangement should be permanent or indefinite.
[21] At para. 34 the chambers judge found that the appellant had not taken the necessary steps to re-employ himself. He said:
I find Mr. Koch’s unemployment was caused by himself and I am not satisfied he has taken all the necessary steps to re-employ himself given the wide variety of his work experience. On this point, I also observe that the B.C. economy has been relatively recession-proof.
[22] He then made the order imputing income [of $35,000 per year] commencing August 2010.
The Court also noted that:
[36] … the general principles concerning the imputation of income from Donovan v. Donovan, 2000 MBCA 80, 190 D.L.R. (4th) 696 at para. 21 as follows: (adopted by this court in Watts v. Willie, 2004 BCCA 600) (at para 46):
1. 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” (Van Gool v. Van Gool (1998), 166 D.L.R. (4th) 528 (B.C.C.A.)).
2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.
3. 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.
4. Persistence in unremunerative employment may entitle the court to impute income.
5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.
[37] He then summarized the law in respect to imputation of income to a parent who has decided to stay home and care for a new child in the following way:
1. income may be imputed to a parent who is intentionally under-employed or unemployed unless the parent establishes under s. 19(1)(a) of the Federal Child Support Guidelines that the needs of a child require the parent to remain at home;
2. it is recognized that generally a newborn child or a child of very young age is a child who needs care at home in the context of s. 19(1)(a), but
3. childbirth does not provide an automatic relief from a parent’s child support obligations;
4. the circumstances of each situation must be evaluated using all of the criteria articulated in Donovan v. Donovan (2000), 190 D.L.R. (4th) 696 (Man. C.A.)as adopted by this Court in Watts v. Willie, 2004 BCCA 600;
5. any period of non-support must be reasonable in the circumstances.
The Court also did not find that Mr. Koch’s claims of disability due to depression believable. Had those claims been supported by stronger medical evidence, the outcome may very well have been different.
If you think you have a child support issue that needs resolving, or if you simply need additional information about any other area of Divorce, Child Custody, Child Support or any other area of Family Law the lawyers at MacLean Family Law Group are here to help, 24 hours a day, 7 days a week. Click here to reach us across BC.
