Friday August 05 2022

General publication

Alimentary Support : What Happens When a Parent’s Unemployment is Not Justified?

As we know, the purpose of child support is to offer the same lifestyle to the child or children, whether they are with their mother or their father. However, what happens when one of the parents refuses to work and expects to live off of the spousal support that the other parent provides? This question was the core subject of the Superior Court judgment in Droit de la famille – 22339, 2022 QCCS 880[1].

In this case, the mother sought the Court’s authorization to move to Switzerland with her children. She justified her request by saying that she already has a job offer and an apartment there and that, in return, she would renounce the child support granted to her and provided by the father. On the other hand, the father firmly contested the mother’s request and asked the Superior Court to grant him equal parental time as well as to readjust the child support and the spousal support by imputing a revenue of 100,000$ to the unemployed mother.[2]

After having determined that it was not in the children’s best interest to start a new life in Switzerland away from their father, the Court had to answer the following question : « Should an income be imputed to the Mother for the purposes of calculating alimentary and spousal support? »

According to the father, he could not afford the current alimentary support and he had accumulated a debt of approximately 140,000$ because of it. He submitted to the Court that, because of the mother’s failure to seek employment and to pay for her share of the children’s expenses related to school and kindergarten, the Court should impute an annual income to the mother that would represent what she could realistically make, namely 100 000$.[3]

On the contrary, the mother asked for an increase of spousal support. Indeed, she believed that the only way for her to work was to move to Switzerland where she already had a guaranteed job.[4]

The Court affirmed that the definition of annual income is much broader than one’s annual salary, therefore the Court has the right to determine a parent’s income based on “what they could generate ».[5] In this case, the Superior Court decided that an income of 100 000,00$ should be imputed to the mother. Firstly, she was offered multiple job options, but refused them all based on the reason that she only wanted to work as a doctor. However, the Court concluded that it would not be prejudicial for her to work as something other than a doctor and that refusing to do so was : « incompatible with her support obligation »[6] and based solely on ego. Moreover, the mother continued to live an extravagant life even if she was not working. The Court considered that the mother could not continue to live this lifestyle and not make any effort to remedy the situation, while the father continued to accumulate serious debts. In this particular scenario, the judge was of the opinion that, even if she was not a certified physician in the province, she could still play a considerable part in the financial support of her children.

Finally, we can conclude that if a parent refuses to work, thinking that they can simply live off of the child support and spousal support granted, the Court may intervene and impute the revenue one would make if they were responsible and providing for their family. We advise you to keep this decision in mind when making a preliminary assessment of your means and the child support or spousal support payable in the event of a divorce or separation.

Me Vanessa Anastasia De Minico

In collaboration with Émilie Habel

Alepin Gauthier Avocats Inc.

​​This text contains legal information of a general nature and should not replace legal advice with a lawyer or notary who will take into account the particularities of your situation.

[1]Droit de la famille – 22339, 2022 QCCS 880

[2] Id., paragr. 1 à 5.

[3] Id., paragr. 121 à 126.

[4]Id., paragr. 127-128.

[5]Id., paragr. 129-138; Civil code of procedure, c. C-25.01, art. 446.

[6] Id., paragr. 146 -148.

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