The parties were married for over six years and had two children, aged 11 and 13 years at the time of the appeal. The father was ordered to pay support of $443 per month based on his income of $33,000. The father's income increased each year:
The father took the position his support obligations over the years should have been based on the previous years income, with the result that he was $1,000 in arrears. The mother took the position that support payable should be based on the current year income, with the result the father was approximately $10,500 in arrears. The chambers judge agreed with the mother, and ordered the father to pay $10,500 in arrears and to continue to make support payments reflective of his actual income. A Supreme Court of Canada decision held that retroactive support should be ordered to the date of the effective notice by the recipient parent, not the date when the payor's income increased. The Supreme Court also held retroactive support should not extend back more than three years, in the absence of blameworthy conduct on the part of the payor.
- Should the child support calculation be based on the payor's current or previous year's income?
The court, in a per curiam decision, upheld the decision of the trial judge. The behaviour of the father was blameworthy in not disclosing a material change in circumstances regarding his income. As a result, the correct time for calculating arrears was back to the change in circumstances.
Turning to the period of calculation, s. 2(3) of the Federal Child Support Guidelines states one must use the "most current information" when performing a support calculation. Section 16 states that annual income should reflect the payor's T1. Reading these together along with s. 17, the court concludes that it is incumbent on a court making an order regarding support to make it according to the payor's current income, if ascertainable, and if not, by a reasonably accurate estimate of the payor's current income with an adjustment at year's end once the actual income is known.
When calculating income for a child support calculation, begin with the amount from line 150 of the previous year's tax return, then make any reasonable changes based on a change of income.