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

Wednesday, January 10, 2018 @ 8:32 AM  

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Appeal by the husband from a trial decision imputing income to him and granting an order awarding the wife primary care and control of the youngest child without specifying custody. The parties married in 2001 and separated in 2012. Since the separation, the eldest child had resided with the husband and the youngest child had resided with the wife. The trial judge found that the eldest child ceased to be a child of the marriage as of January 2016. The husband had not seen the youngest child during the four years between the separation and trial. The husband had received his journeyman lineman certificate about nine years prior to trial. The husband lost his driver’s license in 2013 due to his failure to pay child support and had been unable to obtain permanent work as a journeyman lineman. He did not take any steps to get his driver’s license back prior to trial. The evidence of the husband’s father was that the husband could have been employed over the past four years as a lineman if he had a driver’s license. The husband argued that the trial judge erred in imputing income to him of $75,000 for 2013 and $100,000 thereafter for the purpose of determining child and spousal support. He also argued the trial judge erred by failing to make a specific direction concerning custody, which he characterized as different from parenting time.

HELD: Appeal allowed in part. The trial judge’s imputation of the appellant’s income was varied and his income was set at $51,536 for 2013, $60,000 for 2014 and $75,000 thereafter. The trial judge did not err in imputing income to the husband. The trial judge’s conclusions that the husband had the capacity to work as a journeyman lineman or lineman and that there were jobs available in that trade were reasonable. The trial judge reasonably concluded that it was appropriate to impute income to the appellant commencing in 2014 on the basis that it could be inferred from his overall conduct that he was attempting to avoid his support obligations. However, the amounts of income imputed by the trial judge were excessive and did not reflect what the husband could reasonably have earned. It was not reasonable to conclude that the husband was intentionally under-employed in 2013 for the purpose of avoiding his support obligations. The appellant’s income for 2013 was set at $51,536. The trial judge’s imputation of $100,000 presumed he would have been able to obtain continual employment at $50/hour, 40 hours per week. She failed to consider evidence from the husband and his father about the impact of the downturn in the Alberta economy, the reduced work available in Alberta and the evidence that the husband would need to start as a lineman at $50-60,000 and work his way up. The trial judge clearly intended that the wife have custody, including related decision making, when she used the phrase “primary care and control”. When the order and decision were read together in context and in their entirety, it was apparent that the rights which the husband characterized as custody were vested in the wife.

Keating v. Keating, [2017] A.J. No. 1373, Alberta Court of Appeal, P.A. Rowbotham, B.L. Veldhuis and J. Strekaf JJ.A., December 15, 2017. Digest No. TLD-January82018005