In September, 2012, the British Columbia Court of Appeal considered a case where a father remarried and had a child with his new wife, electing to stay at home with the new child and subsequently reducing his income to zero. He then argued that, due to his status of earning no income, he could not pay support for the children from his previous marriage.
The children
from the prior marriage were in their teen years. The children resided
solely with the mother and had little to no contact with their father. The
father lost his job in 2008 and discontinued paying support that had been
previously ordered at $760 per month. The mother sought to obtain the arrears
and impute income to the father, who she argued was employable and should have
his income imputed for the purpose of child support.
The father
argued that he should be permitted to stay at home to care for the new child
until she became old enough to start going to school full time.
The Chambers
judge allowed the father a period of time akin to maternity leave to be free
from the obligation to pay support, but then imputed an income to the father
after that point. The BC Court of Appeal upheld the ruling that relief from
child support for children of a previous marriage based on obligations to
children of the new marriage should be limited to the normal period of
paternity or maternity leave:
The question
is therefore whether the appellant’s decision to stay at home and care for his
youngest child of a subsequent marriage, is one that in the circumstances of
this case lawfully excuses him from his child support responsibilities to his
two older children.
[35] This Court had
occasion to consider this same issue in McCaffrey v. Paleolog, 2011 BCCA 378,
24 B.C.L.R. (5th) 62 and specifically the application of s. 19(1)(a) of the
Guidelines. That section provides as follows:
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) include 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;
[36] After first noting
that each parent bears responsibility for the support of their children under
s. 19 of the Guidelines, Justice Chiasson, writing for the court in McCaffrey,
referred to the general principles concerning the imputation of income from
Donovan v. Donovan, 2000 MBCA 80, 190 D.L.R. (4th) 696 at para. 21 as follows:
(adopted by this court in Watts v. Willie, 2004 BCCA 600) (at para 46):
1. There is a duty to
seek employment in a case where a parent is healthy and there is no reason why
the parent cannot work. It is “no answer for a person liable to support a child
to say he is unemployed and does not intend to seek work or that his potential
to earn income is an irrelevant factor” (Van Gool v. Van Gool (1998), 166
D.L.R. (4th) 528 (B.C.C.A.)).
2. When imputing income
on the basis of intentional under-employment, a court must consider what is
reasonable under the circumstances. The age, education, experience, skills and
health of the parent are factors to be considered in addition to such matters
as availability of work, freedom to relocate and other obligations.
3. A parent’s limited
work experience and job skills do not justify a failure to pursue employment
that does not require significant skills, or employment in which the necessary
skills can be learned on the job. While this may mean that job availability
will be at the lower end of the wage scale, courts have never sanctioned the
refusal of a parent to take reasonable steps to support his or her children
simply because the parent cannot obtain interesting or highly paid employment.
4. Persistence in
unremunerative employment may entitle the court to impute income.
5. A parent cannot be
excused from his or her child support obligations in furtherance of unrealistic
or unproductive career aspirations.
[37] He then summarized
the law in respect to imputation of income to a parent who has decided to stay
home and care for a new child in the following way:
[58] In summary in a case
like this:
1. income may be imputed to a parent who is
intentionally under-employed or unemployed unless the parent establishes under
s. 19(1)(a) of the Federal Child Support Guidelines that the needs of a child require the parent to remain
at home;
2. it is recognized that
generally a newborn child or a child of very young age is a child who needs
care at home in the context of s. 19(1)(a), but
3. childbirth does not
provide an automatic relief from a parent’s child support obligations;
4. the circumstances of each situation must
be evaluated using all of the criteria articulated in Donovan v. Donovan
(2000), 190 D.L.R. (4th) 696 (Man. C.A.) as adopted by this Court in Watts v.
Willie, 2004 BCCA 600;
5. any period of
non-support must be reasonable in the circumstances.
[59] In my view, the
circumstances to be considered include a consideration of the financial
condition of the payor parent’s present family. It is the needs of the child of
that relationship that are in issue. In some situations the financial
circumstances of the first family may be relevant: for example, where the
second family is very affluent and the first family is destitute. The
circumstances may compel an almost immediate return to work or may provide for
full or part-time in-home assistance. Assisted care or day-care may not be
available readily or be available only on a limited basis. In considering the
applicability of s. 19(1)(a), the court should be given every assistance by the
parties so as to take into account all relevant factors that bear upon the
reasonableness of a period of relief from child support, always recognizing
that in a case like this the burden is on the parent who seeks an hiatus from
the obligation to provide child support to prove that a period of
underemployment or unemployment is required by the needs of a child.
[38] See also Barker v.
Barker, 2005 BCCA 177, 45 B.C.L.R. (4th) 43 at para 19.
[39] In applying
McCaffrey and the principles in Barker to the facts of this case I note first
the evidence of the appellant’s present wife, contained in an affidavit of the
appellant, in which she states:
My job commitments require me to work irregular and extended hours,
sometimes without advance notice, and I am frequently required to travel for
days at a time, making outside childcare virtually impossible. Additionally we
have no family nearby, who would be in a position to assist us.
It is a core value of ours to have a parent at home with […] until she
attends school. It is in […] best interest to be raised by her parents, to have
consistency to her schedule and to be in her own home, and her own crib at nap
time. We are not prepared to relinquish control of her environment to strangers
during these very formative years for emotional and cognitive development.
Patrick is therefore required to stay at home and care for her.
This has turned out to have been the best decision for all concerned.
[…] has bonded very strongly with her father and Patrick has been given an
opportunity to focus his love and attention on his daughter subsequent to his
estrangement with his other two girls. I see […] developing into a happy,
secure, interactive child.
[40] The chambers judge
was not satisfied on this evidence that it was necessary for the appellant to
remain at home on a full time basis with his child. This relief from payment of
child support will, in any event, rarely extend beyond the usual parental leave
period. The judge noted the financial needs of the respondent and her children
and the very difficult financial circumstances in which the respondent was
endeavouring to support the children. There was no evidence of any special needs
of the appellant’s child of his second marriage. There was very little in the
way of evidence of the appellant’s own financial circumstances and, as I have
already mentioned sparse evidence concerning his inability to find employment.
The judge noted the evidence of the appellant’s previous work experience. He
concluded that the appellant was not justified in refusing to pay child
support. I agree with the conclusion of the chambers judge.
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