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FactsEdit

This was an appeal by the father from the dismissal of his application for a reduction or elimination of spousal and child support. The parties divorced in 1997 and agreed that they would have joint custody of their children. The mother had primary care and the father had generous access. The father agreed to pay the mother $1,864 monthly in combined child and spousal support based on income of approximately $60,000 per year. The father enrolled in a part time law program and after 9 years graduated and accepted a one-year articling position that paid $20,000 per year. The trial judge held that the father's decision to change careers was not reasonable given his support obligations.

IssueEdit

  1. What level of income should be used to calculate the husband's support obligations?

DecisionEdit

Appeal dismissed.

ReasonsEdit

Pugsley, writing for the court, held that the language of the judge describing the father's change of career as "fanciful" was not derogatory, but descriptive of the situation. Section 19(1)(a) of the Federal Child Support Guidelines provide for the ability of a court to impute income in the case of intentional under/unemployment other than for the "reasonable educational...needs of the spouse". Pugsley placed his focus on the "reasonable"; it was not reasonable for the husband to take an articling position at one third of his previous salary given the long term support obligations he was already under. There was evidence before the Chambers judge that it would take 10 years for him to get back to a similar salary level if he pursued this avenue.

RatioEdit

  • It is not necessary to prove a motivation to avoid paying support payments; it is sufficient to demonstrate that a decision was unreasonable.
  • A payor cannot ignore the needs of supported children in order to fulfill their own career.
  • Generally,
    • courts will allow a variance where:
      • a positive change in employment, even if there is a short term reduction in income
      • a "reasonable" educational need
    • courts will deny a variance for any intentional under/unemployment.

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