Calgary Calculation Of Child and Spousal Support

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There is no question Calgary oil patch workers and entrepreneurs have been hit hard by dropping oil prices. Calgary calculation of child and spousal support becomes more challenging when our Calgary family lawyers have to deal with fluctuations in income of the paying spouse or parent. Normally the most recent income of the paying Calgary family law client is used but in some cases using the current income might be unfair for a Calgary Calculation Of Child and Spousal Support dispute.

Calgary Calculation Of Child and Spousal Support disputes can cost thousands of dollars if the wrong income figure is used. Call our Calgary Calculation Of Child and Spousal Support team early on because pays to get the income figure right in these support disputes. Our top Calgary Calculation Of Child and Spousal Support lawyers deal with the proper calculation of child and spousal support in cases where:

There has been a significant drop or increase in the income of the paying spouse
the paying party’s income fluctuates from year to year
the paying party has cash income or income from capital gains or dividends
the paying spouse is a self employed owner of a business, proprietorship or partnership
there are investments that have huge latent gains that the paying spouse can control when the income flow starts or stops

Use Of Average Incomes Over Multiple Years Calgary Calculation Of Child and Spousal Support

[19]        The purpose of the Guidelines is to permit the assessment of the money available to a spouse to pay child support: Kowalewich v. Kowalewich, 2001 BCCA 450 at para. 42. The objectives of theGuidelines, set out in s. 1, are:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

[20]        Section 15 of the Guidelines stipulates that a spouse’s annual income is to be determined in accordance with ss. 16-20. Accordingly, the starting point in the determination of income is s. 16, which reads as follows:

Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

[21]        The Guidelines provide courts with the discretion to adjust income based on the preceding three years, in the event that annual income under s. 16 does not represent the “fairest” determination of income. Section 17(1) reads as follows:

If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

[22]        The test in s. 17(1) is what is “fair and reasonable”, having regard to the payor’s income in the preceding three years: Marquez v. Zapiola, 2013 BCCA 433 at para. 53.

[23]        Section 19(1) provides the wide discretion to impute income to a spouse as it considers appropriate. Section 19 is not subject to the restrictions set out in ss. 16, 17 and 18: Oulette v. Oulette, 2012 BCCA 145 at para. 66.

[24]        While s. 17 allows the court to examine income over the previous three years, there is nothing in the language of the section that requires the use of averaging in setting income. This makes sense; accepting that one of the goals of the Guidelines is the fair determination of the amount available to pay child support, fairness is unlikely to be achieved by the mechanical application of averaging. The remarks of the Alberta Court of Appeal in Ewing v. Ewing, 2009 ABCA 227 at paras. 37-38 on this point are apposite:

… But we would point out, for future cases, that section 17 does not suggest that the way to establish fair income is to average. It merely directs the court to set a fair and reasonable amount taking into consideration the past three years’ income and any patterns of income, fluctuations in income and non-recurring gains. The court has the discretion to elect the fairest method, and that could be done by averaging the three years prior to the gain, or a court could remove part, or all, of the non-recurring gains, or take whatever steps it determines are appropriate to arrive at an income figure that is fair for the purposes of support.

…although setting a fair income is highly discretionary, there should be a logical basis for the method chosen and averaging will not always be appropriate.