The answer is no, probably not. If a payor is seeking to quit their job simply to avoid paying child support, this is likely a non-starter.

However, if a payor’s reduction in income falls within one of the reasonable exceptions, and evidence supporting this is provided, a payor may avoid having income imputed to them for the purposes of support.

However, if a child support payor’s choice to quit their job thereby reducing their income, does not fit within an exception, the payor risks the Court imputing income to them for the purposes of support if they are found to be intentionally underemployed or unemployed.

The Federal Child Support Guidelines prescribes at section 19 that the Court has discretion to impute income where a parent is intentionally under-employed or unemployed.

The Algner v Algner, 2008 SKQB 132 decision of Madam Justice Ryan-Froslie (as she was then) remains the leading decision on this issue and has clearly set out the guiding principles respecting the imputation of income.

That case notes that a parent has an obligation to seek employment commensurate with their ability to earn income, and as a general rule, a parent cannot avoid his or her child support obligations by a self-induced reduction of income. However, parents are entitled to make employment or career changes that may impact their ability to pay child support so long as the decision is reasonable in the circumstances.

The first stage of the analysis is determining whether the payor is intentionally under-employed, and then, to determine whether any of the exceptions as set out at section 19(1)(a) of the Guidelines are applicable, namely, whether the under-employment or unemployment is required by reason of:

(i) the needs of a child of the marriage;

(ii) the needs of any child under the age of majority;

(iii) the reasonable educational needs of the spouse; or

(iv) the reasonable health needs of a spouse.

If the Court determines that a parent is intentionally under-employed, the onus then shifts to the parent earning less than they are capable of to demonstrate that their choice was reasonable in the circumstances. The Court does not need to first find that the parent is intentionally avoiding their child support obligation, only that it was a voluntary choice to become under-employed or unemployed.

A number of scenarios could be considered to fall within the exceptions when parties voluntarily leave their employment.

Given the limited scope of this article, I will touch on the health and reasonable educational needs exceptions.

If a health reason, namely the reasonable health needs of a spouse is being relied upon to justify a reduction in income and lower support, the Court needs to be satisfied that a career change is reasonable and require cogent evidence from a medical specialist establishing that the payor cannot do the work they did prior to quitting their employment.

It is critical that a medical specialist provide this evidence, as the Court in Clement v Bridges, 2013 SKQB 356 gave little weight to a chiropractor’s opinion as to whether the payor could continue to work on oil rigs, indicating that chiropractors are not medical doctors, nor are they qualified medical specialists and income was imputed to the payor.

The Court considered the reasonable educational needs exception in the Hinz v Hinz, 2017 SKQB 248 and D.A. v S.A., 2017 SKQB 108 decisions. In these cases, the Court found that a parent who decided to further their education despite having secure, fulltime employment with respectable income, that the practical implication on employment choices and salary was remote and modest. Accordingly, in finding the educational pursuit was not necessary nor reasonable for a parent to reduce their income to pursue this opportunity when there were child support obligations, the Court imputed income to the payors.

Accordingly, there is a wide array of facts that may support a reduction in income, provided it is reasonable and evidence in support is furnished. If you are the recipient of support or the payor of support and seek to reduce your obligations, I recommend you seek legal advice with respect to your family law matter.

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