Imputing Income

The times they are a-changing, a look at the recent Court of Appeal decision in Peters v Atchooay, 2022 ABCA 347.

Over the past three years, the family law system in Alberta has seen multiple changes, from the rights now afforded to unmarried partners under the Family Property Act (January 2020), to the overhaul of divorce legislation across Canada with changes to the Divorce Act (March 2021). The most recent change has occurred in Alberta regarding child support, and the test for assigning income to a payor of child support when they are intentionally underemployed (October 2022). Historically, the test in Alberta has required Judges to consider whether a payor of child support “has pursued a deliberate course of conduct for the purpose of evading child support obligations.”

The new test asks the following:

1. Is the parent in question intentionally underemployed or unemployed?

2. Do the listed exceptions to imputation in section 19(1)(a) of the Federal Child Support Guidelines apply?
These may include the underemployment being required by the needs of the child of by the reasonable educational or health needs of the spouse.

3. Should judicial discretion to impute income be exercised?
This factor allows a Judge to consider each family’s circumstances separately to determine whether or not the parent’s unemployment or underemployment is reasonable given that family’s circumstances.

Please note that there are further evidentiary requirements by the case law, and that each family’s circumstances may differ, resulting in different outcomes.

If you have any questions concerning the changes to the Family Property Act, Divorce Act, or the test to impute income, please contact Resolve Legal Group’s Client Support Coordinator at 403-229-2365 to make an appointment to speak with one of our knowledgeable lawyers.

Katie Ayer, Barrister and Solicitor
Resolve Legal Group