Tuesday, October 16, 2007

CHILD SUPPORT SHENANIGANS

I can hear the aggravation in her voice, tightening her throat. “How is it fair that I’m breaking my back to bring home the bacon and make a home for the kids and he can just sit around mooching off his new girlfriend?”

Thelma’s common law husband of nine years, Fred, walked out on her and their two school-aged children three months ago, saying he needed to “start over.” Apparently, starting over means moving in with another woman, Daphne, minding her Great Dane, and taking a correspondence course in interior design.

The family wasn’t rich. They rented a bungalow, where Thelma stills lives with the kids. Fred still lives in town, so access doesn’t hasn’t been a problem. But every time she’s tried to raise financial issues, he shuts down, mumbling something about their savings. In fact there are just two RRSP’s with just a couple thousand dollars each. Worse still, he’s gone from full time to part time hours in his taxi-driving job because he’s feels stressed out, and needs more time to devote to his studies

Thelma quickly came to the conclusion that she wasn’t getting anywhere with him, so she started an application for child support in provincial court. Using legal aid’s “Family Law in B.C.” and our handy self- help guides (See: http://www.familylaw.lss.bc.ca/guides), she’s already taken care of filing and service already, and the registry has set a first appearance date for later this month.

What she wants from us is some information on how to argue her case. Surely child support shouldn’t be based on his new level of income?

Indeed not.

The starting point in nearly all child support cases are the tables to the Child Support Guidelines (available at http://canada.justice.gc.ca/en/ps/sup/index.html) The tables specify an amount according to the number of children and the gross annual income of the paying parent. For example, Fred’s gross income for last year was $41,902. According to the table, he’s liable to pay $638 total per month for both kids.

Although Fred will likely argue that he should pay less now that he’s earning less, he is almost certain to fail. The guidelines clearly state that a judge may “impute” income to a parent who is intentionally under-employed or unemployed. In other words, a parent who chooses not to earn money to his or her full potential can simply be deemed to be earning his or her full potential, and the child support payable calculated accordingly.

A judge won’t always impute income to an under-earning parent. For example, a parent may need to reduce employment for genuine health or educational reasons. Those reasons, however, have to be reasonable in the circumstances.

In the case of Thelma and Fred, it seems extremely unlikely that a judge would consider Fred’s voluntary reduction in hours to be reasonable. Simply feeling stressed out, short of a diagnosed psychiatric condition, will not likely convince a judge that reduced hours are legitimate health need. Likewise, his sudden desire to pursue new long-term career objectives, while it may be authentic, does not by itself provide a good reason to reduce his immediate financial responsibilities to his children.

I tell Thelma that she has a strong case to argue that child support should be calculated on the basis of Fred’s full time income, and encourage her to proceed on that basis.

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