How Can Income Be Imputed in an Alberta Child Support Case?
By Marcus Sixta, BC and Alberta Family Lawyer, Mediator and Collaborative Divorce Lawyer
In Alberta, child support is calculated using the Federal Child Support Guidelines. Under these guidelines, a parent's income may be imputed (or assigned) if they are not working or are working below their full earning capacity. The court may impute income to a parent if they believe that the parent is voluntarily underemployed or unemployed in order to avoid paying child support.
To determine the amount of income to be imputed, the court will consider a number of factors, including the parent's education, work experience, skills, and job opportunities in their local area. The court may also consider the parent's past earnings and any evidence that they are capable of earning more than they are currently earning. The imputed income may be based on the parent's earning capacity, rather than their actual earnings, and may be higher or lower than the parent's previous earnings.
Once the court has determined the amount of income to be imputed to the parent, it will use this income, along with the income of the other parent, to calculate the amount of child support that is payable according to the Federal Child Support Guidelines.
The Alberta Court of Appeal recently revisited the test for the imputation of income under S. 19(1). Prior to this change is was nearly impossible to impute income in Alberta for child and spousal support calculations. In order to impute income, the court had to find that someone was intentionally unemployed or underemployed with the intent to reduce their support payments.
In Peters v Atchooay, 2022 ABCA 347, [2022] AWLD 4892, [Tab 18], the Court changed the test for the imputation of income in support cases. The Court stated the following:
[64] In most instances, this initial onus to establish an evidentiary basis is a low bar. It will be met where, for example, the person seeking imputation can point to the payor’s sustained drop in income. Establishing a prima facie case may be more difficult where there is no such income history, the allegation being instead that the prospective payor has been perpetually under-employed. Establishing a prima facie case in this example may require evidence of the payor’s capacity to earn income, including age, education, experience, skills, and availability of work.
[65] But regardless of onus, each parent is expected to make full disclosure and bring forward the best available evidence supporting their position on the appropriate Guidelines income for themselves and the other parent. The Guidelines require full disclosure throughout, while s 7.4 of the Divorce Act imposes a positive obligation on parties to “provide complete, accurate and up-to-date information”. This Court and the Supreme Court of Canada have made it abundantly clear that “payor parents have an affirmative duty of full disclosure”[…].
[71] A parent’s personal goals and life-style choices do not take priority over their obligation to financially support their children. It is recognized that for many who work, it provides more than a livelihood; it provides a sense of identity, self-worth and well-being. However, the Guidelines and the Divorce Act direct that children be shielded from the negative impacts, financial and otherwise, of separation and divorce. As has been repeatedly recognized by this Court and the Supreme Court of Canada, parents have an obligation to support their children financially. Child support is the right of the child and cannot be bargained away by the parents (Michel at para 10; Henderson at para 32); “The Guidelines regime is decidedly child-centered” in recognition of that right (Brear v Brear, 2019 ABCA 419 at para 18; Henderson at para 36).
Income can be imputed if a person refuses to provide documents necessary to determine what their income is for a child support claim. Under section 23 of the Child Support Guidelines, the court may draw an adverse inference on someone as a result of their failure to disclose. This means that the court can make an inference that the person has intentionally avoided providing disclosure because the information would not have been helpful to their case.
The court will generally try to impute an income to the parent that is fair and reasonable, taking into account the parent's circumstances and the best interests of the child. If you are dealing with a case involving an imputation of income the Alberta family lawyers at Crossroads Law can help. We have extensive experience at all levels of court in Alberta and have been successful in imputing income in support cases. Contact us today for your free 20-minute consultation.
