Calculating Child Support Income For Stay At Home Parents is a hot topic.
As we have repeatedly said in these articles, child support is the right of the child to receive, and the duty of each parent to pay, according to their abilities. For child support purposes, this usually means according to their employment income. But what happens if a parent chooses not to work at all, or to not work according to their abilities (ie. their qualifications and experience). In more legal terms, what is a parent’s child support obligation if they are intentionally un-employed or under-employed? Two examples of this situation are if the parent is working part-time, or a stay-at-home parent.
Child Support Income For Stay At Home Parents – Choosing to Work 1 877 602 9900
Section 19(1) of the Federal Child Support Guidelines provides that where a spouse is intentionally under-employed or unemployed, the Court may impute (ie. impose) to that spouse any income for child support purposes it considers appropriate in the circumstances. However, as we previously indicated (see: Calgary Support Underemployed Income Imputation – ), until recently, the Alberta Courts set a much higher “test” than most other Canadian provinces (notably BC and Ontario) for finding that someone was intentionally under/un-employed, requiring evidence of bad faith or a deliberate evasion of child support.
In October 2022, in the case of Peters v. Atchooay (2022 ABCA 347), Alberta joined these other provinces in holding that the test for imputing income for child support purposes is actually whether the parent is earning what they are reasonably capable of earning, rather than what they choose to earn. For a fuller discussion on Peters, see Brianne Beckie’s excellent article: Best Imputed Income Support Lawyers .
Part-Time Work 1 877 602 9900
So what does this mean for a parent who is not earning the income they are reasonably capable of earning by choosing to either work part-time or be a stay-at-home parent? How have the Courts looked at this? Regarding imputing income for a parent working part-time, in a recent case where a father was only working part-time (ie. casual employment teaching at SAIT) despite having a strong educational background and technical skills, Justice S. Kachur of the Alberta Court of King’s Bench upheld Justice G. Poelman’s previous decision to impute income to the father, stating [see: AR v. JU (2022 ABQB 527) at para.’s. 43 – 45]:
“Justice Poelman assessed JU’s income for 2016 and determined that $75,000 was an appropriate income to impute for that year. In doing so it stated:
Of course, JU is not working full time at SAIT, and it may be a year or more before that occurs, if he pursues that career choice. That is not an answer to imputing income. He has the ability to earn much more than he is, and can chose to supplement his part time SAIT income with other work or find another source of work all together.
It would appear that despite being directed to do so by Justice Poelman, JU failed to supplement his income in any other way including EI… Justice Poelman was very clear in his decision that JU had the ability to earn more income than simply working at SAIT on a part time or casual basis. JU provided little to no evidence that he did anything further in 2017 to meet Justice Poelman’s direction.”
Stay at Home Parent’s Obligation To Support Child 1 877 602 9900
An important aspect of this discussion is that s. 19(1)(a) of the Guidelines sets out an exception to income imputation for parents providing daycare to their children, stating:
“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” (emphasis added)
So how does this apply to stay-at-home parents? In a previous article (see: Vancouver Child Support Lawyers Imputed Income and Unemployed Stay at Home Parents – ), we discussed the case of a British Columba father who decided to stay home to look after a child of a new relationship and claimed he could therefore not pay support to children of a previous relationship (see: Koch v. Koch, 2012 BCCA 378).Both Koch and the court in McCaffrey v. Paleolog, 2011 BCCA 378 summarized the law concerning imputation of income to a parent who has decided to stay home and care for a new child:, in deciding to impute income to the stay-at-home father for support of his previous children, the Court summarized the law as follows (at para. 37):
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. (all) the circumstances of each situation must be evaluated …;
5. any period of non-support must be reasonable in the circumstances.
Vancouver Child Support Income For Stay At Home Parents 1 877 602 9900
More recently, in the Alberta case of Spring v. Spring (ABCA 2022 19), the Alberta Court of Appeal upheld the lower Court decision imputing income to a father who claimed to be unemployed and acting as a stay-at-home father to two children from a second marriage. In holding that the father failed to establish that the children from the second marriage had any special requirements or other extenuating circumstances that required him to stay home, the Court concluded (at para. 10) :
“A parent’s reliance on s. 19(1)(a) to justify a period of unemployment to meet the needs of a child is not unqualified and unlimited. The exemption is not automatically extended where children require care but are not yet of school age or require after school care…The chambers judge also observed that the law is clear that parents have an ongoing obligation to support their children notwithstanding they may assume additional duties and obligations for other children born as a result of subsequent relationships… The chambers judge held that the interpretation of s. 19(1)(a) urged by the appellant would create an unqualified right for a parent to decide to remain at home in the care of children, even in the face of a moral and legal responsibility to provide financial support to other dependent children (emphasis added).
Calgary Child Support Lawyers
As can be seen above, the law regarding a parent’s obligation to pay child support (both retroactively and on-going) in Alberta is changing. But recent cases from the Supreme Court of Canada (Michel, Colucci) and the Alberta Court of Appeal (MacDonald v. Brodoff, Peters v. Atchooay) serve to only reinforce both the right of the child to receive financial support, and the obligation (both moral and legal) of parents to financially support all their children. Cases from other provinces have given some direction as to how this obligation to pay child support will be applied to stay-at-home parents or parents working part-time in Alberta. So far, it appears there is no unqualified “right” for a parent to remain at home or limit their employment to care for a child. It will be interesting to see how the Alberta Courts continue to expand or restrict the principles of imputing income to these parents.
If you have questions about Child Support Income For Stay At Home Parents, contact us today.