When support (either child or spousal) is an issue in a family law case, there are a
number of questions which need to be addressed before the actual support
calculation is made.
For example, in the
case of child support, is a young person over the age of 18 still eligible to
receive child support? If so, in what form is that support to be paid? To whom?
On the issue of
spousal support, is the potential support recipient making best efforts to
contribute to his or her own support based on their current ability to do so?
The income of the potential payor is a key question to
address in any consideration of support obligations. “Income for tax purposes" is not necessarily
“income for support purposes” in family law.
In other words, simply because Canada Revenue Agency accepts a potential
payor’s representations of his or her income for tax purposes does not mean
that a family law Judge will do the same.
Family law spreads a much wider sweep
over a potential payor’s income sources to determine the true extent of his or her
ability to pay support.
The Child Support Guidelines, which
technically apply to the calculation of child support but have now been wildly
accepted as applying to spousal support calculations as well, permit the
inclusion in income for support purposes of a wide variety of income
sources. The intent of the legislation
is to ensure that financial dependants receive support based on all sources of the payor's actual income but also on sources which are available to the payor, even if he or
she chooses not to tap into them.
By way of one example only, income earned by
a business which is not paid out to a shareholder but could be is vulnerable to
being included in his or her income for support purposes. Personal expenses run through the business
are also vulnerable to being added back to the payor’s income for support
purposes.
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