Desire to Work Part Time to Care for Children not Sufficient to Avoid Finding of Intentional Underemployment
Vancouver BC Child Support Intentional Underemployment Lawyers know that one of the most contentious child support issues occurs when people fight over what each person’s real income is or should be. Canadians expect people to work hard to support themselves and their children. When either parent works less than they can without good reason Courts can and will step in to protect children.
Most BC Family Law parents who are dealing with child support are familiar with some of the basic principles of the law found in the Family Law Act, Divorce Act, and Child Support Guideline :
1) Child support is the right of the child;
2) Generally, each parent and guardian of the child has a duty to provide support for the child;
3) When support is payable pursuant to the Guidelines, support is based on not simply what the parent earns, but what the parent is capable of earning.
The Vancouver BC Child Support Intentional Underemployment lawyers at MacLean Law have seen every type of imputed income situation you can imagine and are skilled advocates for our clients.
If the BC Court orders a parent/guardian of a child to be paying child support based on an income different than what the parent/guardian actually earns, this may be because the Court has imputed income to the payor. Section 19 of the Guidelines sets out some of the circumstances where income may be imputed to a payor; the first is “intentional underemployment”, and the subsection reads as follows:
- 19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
Sharp readers will note that imputation of income due to intentional under-employment or unemployment is not automatic, and that in any event it may be excused if it “is reasonably required by the needs of a child of the marriage or any child under the age of majority”. Does this mean that a parent who has a young child can rely on that fact to avoid an imputation of income? In and of itself automatically, no.
The recent BC Supreme Court case of Cuthbert v Busto 2014 BCSC 599 held that the mother must pay support based on a projection of what her income would be if working full-time, even though she worked part-time because of the particular arrangements of her new household. Mr. Justice Funt followed the decision and analysis of the BC Court of Appeal in McCaffrey v Paleolog 2011 BCCA 378 in holding “a desire to stay at home with a child does not relieve the parent from his or her child support obligations, absent evidence of the needs of a child which require the parent remain home and unavailable for employment”.
McCaffrey contains the following general principles, at paragraph 58:
[58] In summary in a case like this:
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 MBCA 80 (CanLII), (2000), 190 D.L.R. (4th) 696 (Man. C.A.) as adopted by this Court in Watts v. Willie, 2004 BCCA 600 (CanLII), 2004 BCCA 600;
5. any period of non-support must be reasonable in the circumstances.
If you or your child is being shortchanged on child support, or someone is unreasonably exaggerating what you can really earn, call our Vancouver BC Child Support Intentional Underemployment Lawyers right away at 604 602 9000.
