A Look at the Law
The Public Legal Education Association of Saskatchewan (PLEA) is a non-profit corporation, non-government organization that provides the people of Saskatchewan with understandable, useful information and education on our laws and legal system.

Child Support Issues
April 13, 2007

The legal duty of parents to support their children is a central theme in family law. The best interests of the child must include adequate support. In fact, the legal obligation of parents to support their children is so important that a divorce cannot be granted until the court is satisfied that children will be adequately cared for.

Sometimes when parents separate or divorce, unresolved issues between the parents can cause them to lose sight of their child’s best interests. Sometimes this can lead to a parent being less than forthcoming with information about his or her financial situation.

In cases such as these, or in cases where a parent chooses to decrease their income rather than pay the required amount of child support, a court can “impute” income to that parent. The notion of imputing income allows a court to treat a paying parent as if he or she has a higher level of income than what was reported. The obligation to support a child is so critical that courts can consider what a parent is capable of making, not just what he or she actually makes or reports.

Imputing income is a way for the courts to establish a fair level of child support and ensure that the child continues to benefit from the financial means of both parents after separation or divorce.

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 that he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor.

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.

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.

Persistence in poorly paid employment may entitle the court to impute income.

A parent cannot be excused from his or her child support obligations while they seek out unrealistic or unproductive career dreams.

The legal duty of parents to support their children is a shared and ongoing obligation. Child support orders and agreements that are based on the Child Support Guidelines generally look at the paying parent’s income at a single point in time. While parents have the ability to agree to change an order or agreement, or to bring a court application for variation, a parent receiving child support may not always know when there has been a change in income that would trigger a higher level of child support under the guidelines.

Parents do, however, have a right to request updated financial information from a paying parent once a year. As a result, until recently, paying parents may have not felt obliged to volunteer information about increased income. But the Supreme Court of Canada has now noted that when a paying parent doesn’t increase the amount of child support paid when their income increases, it is the child who loses, as it is the child who is entitled to increased support. The latest ruling on this matter has made it clear that if a paying parent does not disclose increased income they may later be ordered to make payments to make up any difference.

This article is intended to be general information only. People who need specific advice should see a lawyer.

For general legal information on other areas of the law, contact Public Legal Education Association, 300 – 201 21st Street East, Saskatoon, Saskatchewan S7K 0B8, Phone: (306) 653-1868, E-mail: plea@plea.org or see our web site at www.plea.org.