The Alberta Court of Appeal in the case of Ewing v. Ewing, 2009 ABCA 227 dealt with a court’s discretion to determine pursuant to section 17 of the Federal Child Support Guidelines, S.O.R./97-175 (Guidelines), and its discretion to depart from the section 4 “Table” amount for incomes more than $150,000 when the application of that amount would result in “inappropriate” support.
Section 17 of the Guidelines requires a judge to determine whether it is fair to calculate income for the purpose of setting child support by applying section 16, and where it is not, to set a fair income. It does not matter whether support is being set prospectively or retroactively. In setting a fair income the judge may have regard to the spouse’s income over the last three years and assess what is fair having regard to the pattern of income, fluctuations in income or non-recurring amounts during those years.
The trial judge erred in law in four ways. First, he imposed too strict a burden on the cross-appellant to rebut the presumption that the Table amount would be inappropriate. Second, he failed to examine the actual means, needs and circumstances of the children in his assessment of that issue. Third, he failed to explain why he concluded that the evidence did not raise a concern that the Table amounts were inappropriate, relying simply on the fact that the father could pay. Finally, it appears that in reaching his conclusion, the trial judge acted on the assumption that the appellant had not received the $13,776 per month until August 2007, when that was not the case.
The judge found that the evidence supported a finding that the Table amounts would result in inappropriate support. The evidence did not support an increase over the amounts being paid.
To read the full Decision click here.