By: Zoya K. Yusuf
November 9, 2022
Much has changed in family law since the long-standing deliberate evasion test in Hunts v Smolis, 2002 ABCA 229. Under the evasion test and pursuant to Section 19(1) of the Federal Child Support Guidelines, to impute an income to a payor, there had to specific intention to undermine or avoid support obligations. This meant that proof or specific intent to avoid child support obligation was required. In the recent decision of Peters v Atchooay, 2022 ABCA 347, the Court of Appeal replaced that evasion test with the reasonableness test; a test that had been adopted by all provinces in Canada in assessing whether to impute an income to a parent/payor under the Guidelines.
Under the reasonableness test, the following questions will apply when the issue of unemployment or under-employment and imputation of income is raised under Section 19(1) of the Guidelines:
- Is the parent in question intentionally under-employed or unemployed?
- Do the listed exceptions to imputation in s 19(1)(a) apply?
- Should judicial discretion to impute income be exercised?
As opposed to placing the burden on the recipient of child support, the onus now rests on the party opposing imputation to prove that 1) the under-employment or unemployment was not voluntary, that is, not due to their own decision or conduct; or 2) that the under-employment or unemployment is as a result of one of the listed exceptions in section 19(1)(a). The list of principles guide the determination of whether to impute income to a parent under section 19(1)(a).
What this means is that the payor parent must prove that the change in career choice resulting in a reduction in income was reasonable in all the circumstances. The Court may use its discretion whether to impute income, involves determining if the voluntary unemployment or underemployment of the payor parent was reasonable in the circumstances.
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