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MAINTENANCE AND SUPPORT - Child support - Calculation or attribution of income

Tuesday, October 20, 2020 @ 7:53 AM  


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Appeal by the mother from a child support award. The parties married in 1993 and separated in 2008. Their children were now 17 and 23 years of age. The parties were qualified practicing lawyers. A 2010 trial divided assets, determined residence of the children, refused a relocation application by the mother, and set the parties’ incomes for support purposes. In 2014, income was assessed for a variation application. In 2016, the mother’s mobility application was renewed, and one child was permitted to move with the mother to Alberta. In 2018, the mother applied for child support based on an increased imputed income to the father as the sole shareholder of his professional law corporation. The trial judge accepted that the father’s income for support purposes was, pursuant to s. 16 of the Guidelines, equivalent to his stated income in line 150 of the T1 form issued by the CRA, with some minor adjustment for personal expenses paid by his business. The mother appealed on the basis that the stated professional income did not truly reflect the income available to the father for child support. She sought to include corporate pre-tax earnings in the father’s income pursuant to s. 18 of the Guidelines.

HELD: Appeal allowed in part. The sole ground of appeal with any merit was the issue of the father’s Guideline income. Otherwise, the chambers judge did not misapprehend expert evidence, err in rejecting the mother’s request for reimbursement of certain medical expenses, or err in refusing a claim for maintenance of a life insurance policy. However, the chambers judge erred in relying on expert evidence as a basis for determining that a Guideline income determined in accordance with s. 16 fairly reflected all the money available to the father for the payment of child support. The growing discrepancy between the father’s pre-tax corporate income and his own line 150 income required careful consideration by the chambers judge. There was no basis for departing from the general rule that Guideline income be set at the corporation’s pre-tax earnings, plus salaries, wages and benefits paid to non-arm’s length individuals. If the parties were unable to agree on the resultant adjustment, the case would be remitted to the trial division for determination.

Quinton v. Kehler, [2020] B.C.J. No. 1457, British Columbia Court of Appeal, M.E. Saunders, P.M. Willcock and G.B. Butler JJ.A., September 15, 2020. Digest No. TLD-October192020004