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The imputation of income under s. 19(1) of the Guidelines should be grounded in the principle of determining a fair and reasonable income based on the evidence

Ontario

,

Canada

In W.L.G. v. A.C.G., 2021 SKCA 112, the parties separated after 18 years of marriage. At the relevant times, the husband had a30% share in Allied, a corporation which owned a Home Hardware franchise store in Moose Jaw. The husband owned his shares in a holding company, “WLG Ltd.”).

 

The Trial Judge’s Decision

The trial judge reviewed the law germane to the imputation of income, as well as the provisions found in ss. 16–20 of the Federal Child Support Guidelines, (“Guidelines”).The trial judge noted that the objective of those sections was to establish an amount that fully and fairly reflects the income available for child support purposes.The trial judge concluded that the three-year average of the husband’s line 150income was not the fairest determination of income available for support purposes, as there was available money in the companies. The trial judge imputed the husband’s income at $500,000.

Imputing Income

Caldwell J.A. noted that the imputation of income must be grounded on the guiding principle set out in s. 19(1) of the Guidelines of determining a fair and reasonable income based on evidence. 

Caldwell J.A.determined that the trial judge did not err by using s. 19 of the Guidelines to impute income. The husband was the sole shareholder of a corporation that depended on dividend income from another corporation of which he was the largest, but nevertheless a minority, shareholder. The way that second corporation’s financial and corporate affairs were arranged, made – or had the effect of making – funds it had accumulated that could be used for support unavailable for that purpose. In these circumstances, it was open to the trial judge, on the basis of the wide ambit of s. 19, to use that provision to impute income to W.L.G. The trial judge’s use of s. 19 in these circumstances accorded with the objectives of the Guidelines (paras 98-99).

Ongoing Spousal Support Order

The husband argued that the trial judge made determined spousal support on the basis of what the parties might have enjoyed given their resources, rather than the lifestyle they did in fact enjoy during the marriage. Caldwell J.A. disagreed. Though the trial judge acknowledged that the parties did not have an extravagant lifestyle during their marriage and that the the wife’s needs, as set out in her sworn financial statement, were less than the combined award of spousal support and child support, this is only factor of several and must be understood in context(para 116).

Specifically, the wife was entitled to spousal support on a compensatory basis. The focus of compensatory support goes beyond needs and lifestyle (para 117). 

Further, the trial judge did not err in failing to consider whether the wife could, in the future, generate income from the investment of the property equalization payment, as there was no evidence adduced with respect to the rates of the return (paras124-125). Nor did the trial judge err in finding that it was not practicable to expect the wife to achieve self-sufficiency quickly (para 123).

Retroactive Spousal Support Order

The purpose of an interim order for spousal support is to allow the spouse to live at a lifestyle that reasonably approximates the one enjoyed during the marriage pending the trial. Interim orders are primarily focused on the need of the payee and the means of the payor. In that sense, the focus is on the non-compensatory aspects of support despite the fact that under s. 15.6(b), compensatory objectives can play a part in the determination of an interim order (para 144).

The evidence as a whole demonstrated that the wife’s needs prior to the trial were being met by the consent orders. She enjoyed a lifestyle equivalent to or greater than that during the marriage.  Based on the purpose of an interim order, CaldwellJ.A. held that the trial judge erred by awarding retroactive spousal support in the circumstances of this case (para 148).

April 14, 2022
– W.L.G. v. A.C.G., 2021 SKCA 112