What do you do if you believe your spouse is intentionally unemployed or underemployed and you are receiving child support payments from them?
The Federal Child Support Guidelines have addressed this factor specifically under Section 19 which states:
- “19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) 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”
Section 19 (a) has been interpreted differently in each province. Currently the leading authority in Alberta is the decision of Hunt v Smolis-Hunt; 2001 ABCA 229 of our Court of Appeal and was reiterated in the decision of Taylor v Taylor 2009 ABCA 354.
- First the Court will have regard to the overall purpose of the Guidelines which is to establish fair levels of support for children from both parties in a predictable and consistent manner. Hunt v Smolis-Hunt para 60 and 61
- Second, the Court requires proof of a specific intention to undermine or avoid support payments or proof of circumstances which permit the Court to infer a payor’s intention is to undermine or avoid his/her support obligation. Hunt v Smolis-Hunt para 42
- Third is that a person who is involved in matrimonial matters is entitled to change employment. Individuals, including those obliged to pay support are free to pursue work which provides not only income but also a sense of self worth and emotional well being. The Court specifically notes that it is often the best interest of the children when the identity, self worth and emotional well being of both parents are considered. Hunt v Smolis-Hunt para 68
- The Court notes intent to evade support obligations may be found where the unemployment, underemployment or other acts of the person obliged to pay support indicates a deliberate refusal to live up to the obligation to pay support for one’s children. Hunt v Smolis-Hunt para 73
- To make this determination, the Court will look at the payor parent’s history of support payments such that the parent who has generally paid support on time and in appropriate amounts as oppose to a parent who has never paid, or has only paid sporadically, will have a change of employment less likely to be considered a deliberate attempt to evade child support. Hunt v Smolis-Hunt para 74-75
With the principles of Hunt v Smolis-Hunt, paying parents are given a fair amount of latitude to pursue different economic paths. They do not have a specific duty to maximize their employment income however, they do have to be reasonable in their decisions due to their obligation to support children. If you believe your spouse is intentionally unemployed or underemployed, or if you have been served with a claim alleging this, at Soby Boyden Lenz LLP, we can help navigate the law for you. To know about your rights and obligations, call Soby Boyden Lenz LLP at 403-262-0000 to set up a consultation with one of our experienced lawyers.