Peters v Atchooay Considerations
The Great Resignation. Quiet Quitting. I Don’t Dream of Labour. Anti-Work. It seems more and more people are taking stock of their relationship with work and considering changing employers, pursuing different careers, or altogether leaving the labour market. Whether it be a global pandemic or a divorce, big events can spur individuals to make major career changes.
However, for parents going through a separation, there are important child-support considerations when career planning.
Career moves must be reasonable or else courts will impute income for child support
Albertans who pursue less remunerative jobs following a separation now have a harder time successfully claiming that child support obligations should be adjusted downwards to reflect their lower income. This is because the Alberta Court of Appeal decision of Peters v Atchooay, 2022 ABCA 347 replaced the “deliberate evasion test” for imputing income with a” test of reasonableness”. Before, so long as the change to the less remunerative job was not made to deliberately evade child support, parents could change jobs and have child support adjusted to reflect the lower income. Now, in recognition of the child-centered changes to the Divorce Act and the fact that Alberta was the only province that still relied on the burdensome deliberate evasion test, Alberta courts can hold child support to pre-job-change levels and impute income where the career choice is:
- voluntary – the change is not the result of circumstances truly beyond the control of the payor (e.g., lay-offs, reduced hours, or termination without cause);
- not required by the needs of the children or by the reasonable educational or health needs of the parent; and
- not reasonable, having regard to all the circumstances.
What is a reasonable career move in relation to child support?
In discussing the reasonableness of voluntary career moves, the Alberta Court of Appeal in Peters set out the following governing principles:
- Personal ambitions are second to the financial support of children: A parent’s personal goals and lifestyle choices do not take priority over their obligation to financially support their children. While the Alberta Court of Appeal recognized that work can be more than just a livelihood and provide a sense of identity, self-worth, and well-being, parents also have an obligation to support their children financially. Ultimately, “[p]arents have a legitimate interest in pursuing meaningful work and making choices that affect their lives, but this is only one factor and will rarely carry the day, particularly where the evidence suggest negative impact on the children.”
- There is no obligation to maximize a payor’s earning potential: The Alberta Court of Appeal recognized that many people are technically capable of earning more income through accepting additional shifts or overtime, taking on an additional job, working out of town, choosing to work in the private sector over public service, or regularly changing between employers to maintain the highest possible salary possible. However, the law does not require a payor to maximize wealth accumulation in all circumstances. For example, there is no need to work more than regular full-time hours or maintain a second job.
- Assessing the reasonableness requires consideration of all relevant factors: Assessing reasonableness begins with looking at the degree to which child support is impacted. Where there is a significant reduction of child support, the employment decision “needs to be justified in a compelling way”. Courts should also consider the effect of the reduced child support on the child. While not every voluntary change of employment that results in a reduced income is unreasonable, there are also cases where no degree of underemployment will be reasonable (e.g., where the payor is barely able to support themselves).
- The arrangement of the parents before the separation is not determinative of what is “reasonable” after the separation: Just because a spouse approved of the other engaging in unreasonable underemployment or unemployment during the relationship, does not mean that the underemployment or unemployment becomes reasonable after the separation. Similarly, just because it was accepted that one spouse was the sole provider and high-income earner during the relationship, it does not necessarily follow that they must maintain that same lifestyle or else the career change will be deemed unreasonable. Where a parent takes on greater obligations towards the children post-separation, courts should factor that into its analysis because a “very high-income earner is not required to sacrifice his or her health, well-being, or parenting time simply to maintain a high level of support.”
- However, a parent cannot justify their reduced income by simply referencing the child’s “best interests” or “becoming a better parent by working less”: It is generally assumed that a child will benefit from more income and not less. Courts must be alive to parents professing a desire for increased parenting time but only doing so for the purpose of reducing their child support obligations.
- Underemployment or unemployment for the purposes of evading child support will never be reasonable: While it is no longer necessary to show “bad faith” due to the replacement of the deliberate evasion test, a finding of bad faith is sufficient to lead to the imputation of income.
By replacing the deliberate evasion test with a test of reasonableness, the Alberta Court of Appeal in Peters eliminated the onerous burden placed on recipients of child support to prove that the payor was deliberately evading support obligations. While it is now more difficult for payors to unjustly limit their child support obligations, parents in general should be aware of their obligations under the new Peters framework when planning their next career moves.
Child support obligations are determined on a very fact-specific basis. If you are going through a divorce and need the assistance of an experienced lawyer to understand your rights and obligations, contact us to book an initial consultation.
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