“Aproper construction of s. 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual “condition, means, needs and other circumstances of the children” on the other. Furthermore, this balancing must take into account the ordinary meaning of the word “inappropriate”, as well as its use elsewhere in the statute. In my opinion, the plain language of s. 4 is consistent with such an interpretation. Accordingly, the word “inappropriate” in this section must be broadly defined to mean “unsuitable” rather than merely “inadequate”. Courts thus have the discretion to both increase and reduce the amount of child support prescribed by the strict application of the Guidelines in cases where the paying parent has an annual income exceeding $150,000. I would note that the respondent did not take issue with this interpretation in either her written or oral submissions.
I add one final comment. As noted above, Abella J.A. was concerned with the differential treatment of children. In my respectful opinion, a broad interpretation of the word “inappropriate” in s. 4 does not deny children of high income parents any of the intended benefits of the Guidelines. The plain wording of s. 4 (b)(i) dictates that these children can predictably and consistently expect to receive, at a minimum, the Table amount for the first $150,000 of their parents’ income. They can further expect that a fair additional amount will be awarded for that portion of income which exceeds $150,000. Indeed, even this latter figure lends itself to a degree of predictability and consistency in that the closer the paying parent’s income is to the $150,000 threshold, the more likely it is that the Table amount will be awarded. In my opinion, child support undeniably involves some form of wealth transfer to the children and will often produce an indirect benefit to the custodial parent. However, even though the Guidelines have their own stated objectives, they have not displaced the Divorce Act, which clearly dictates that maintenance of the children, rather than household equalization or spousal support, is the objective of child support payments. Section 26.1(2) of the Act states that “[t]he guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation” (emphasis added). While standard of living may be a consideration in assessing need, at a certain point, support payments will meet even a wealthy child’s reasonable needs. In some cases, courts may conclude that the applicable Guideline figure is so in excess of the children’s reasonable needs that it must be considered to be a functional wealth transfer to a parent or de facto spousal support. I wholly agree with the sentiment of Abella J.A. that courts should not be too quick to find that the Guideline figures enter the realm of wealth transfers or spousal support. But courts cannot ignore the reasonable needs of the children in the particular context of the case as this is a factor Parliament chose to expressly include in s. 4(b)(ii) of the Guidelines. Need, therefore, is but one of the factors courts must consider in assessing whether Table amounts are inappropriate under s. 4. In order to recognize that the objective of child support is the maintenance of children, as well as to implement the fairness and flexibility components of the Guidelines’ objectives, courts must therefore have the discretion to remedy situations where Table amounts are so in excess of the children’s reasonable needs so as no longer to qualify as child support. This is only possible if the word “inappropriate” in s. 4 is interpreted to mean “unsuitable” rather than merely “inadequate”.
- Establishing Inappropriateness
When child support is calculated under s. 4(b), the express wording of s. 4(b)(i) does not permit deviation from the Guideline figures for the first $150,000 of the paying parent’s income. Of course, the application of other sections of the Guidelines, such as the s. 10 undue hardship provisions and the s. 7 special expense provisions, may subsequently permit deviation from this figure. For that portion of the paying parent’s income over $150,000, the strict Guidelines amount is immediately open to review; under s. 4 (b)(ii) any amount attributable to income above the $150,000 threshold can be reduced or increased by a court if it is of the opinion that the amount is inappropriate having regard to the condition, means, needs and other circumstances of the children, and the financial abilities of the spouses. Nevertheless, based on the ordinary meaning of the provision, its context in the overall child support scheme, and the purposes of the Guidelines, I find that in all cases Parliament intended that there be a presumption in favour of the Table amounts. I agree with Abella J.A. that the words “Presumptive Rule” found in the marginal note beside s. 3 of the Guidelines are relevant in this regard. Accordingly, the Guideline figures can only be increased or reduced under s. 4 if the party seeking such a deviation has rebutted the presumption that the applicable Table amount is appropriate. Counsel for the appellant conceded this point in oral argument.
The recognition of a presumption in favour of the Guideline figures does not compel a party seeking a deviation from this amount to testify or call evidence. No unfavourable conclusions should be drawn from this decision. Indeed, in some cases, such a party may not be able to provide relevant evidence. Parties seeking deviations from the Table amounts may simply choose to question the evidence of the opposing party. Whatever tactics are used, the evidence in its entirety must be sufficient to raise a concern that the applicable Table amount is inappropriate. To this end, I agree with Lysyk J. of the British Columbia Supreme Court in Shiels v. Shiels, 1997 CanLII 767 (BC SC), [1997] B.C.J. No. 1924 (QL), at para. 27, that there must be “clear and compelling evidence” for departing from the Guideline figures.
While there must be an “articulable reason” for displacing the Guideline figures (see, for example, Plester v. Plester(1998), 1998 CanLII 6657 (BC SC), 56 B.C.L.R. (3d) 352 (S.C.), at para. 153), relevant factors will, of course, differ from case to case. I note, however, my agreement with MacKenzie J. in Plester,supra, as well as Cameron J.A. in Dergousoff,supra, that the factors relevant to determining appropriateness which Parliament expressly listed in s. 4(b)(ii), that is, the condition, means, needs and other circumstances of the children, and the financial abilities of both spouses, are likewise relevant to the initial determination of inappropriateness. Only after examining all of the circumstances of the case, including the factors expressly listed in s. 4(b)(ii), should courts find Table amounts to be inappropriate and craft more suitable child support awards.
The task of determining whether Guideline figures are inappropriate under s. 4 must be undertaken by courts armed with all of the necessary information. Given that, as I explained above, children’s needs are one of the factors to be considered in assessing appropriateness under s. 4, child expense budgets which provide some evidence, albeit imperfect, of the children’s needs will often be required in contested cases where the paying parent earns more than $150,000 per annum. This is consistent with s. 21(4) of the Guidelines, which requires custodial parents to provide certain financial information within a specified time after learning that the paying parent’s annual income exceeds $150,000. As with the mandatory s. 21(4) financial disclosure, the special circumstances of high income parents may also dictate that custodial parents provide child expense budgets. However, unlike the forms of financial disclosure expressly required under s. 21(4), Parliament did not choose to create a blanket rule requiring custodial parents to produce child expense budgets in all cases where s. 4 of the Guidelines is invoked. I would therefore leave it to the discretion and experience of trial judges to determine on a case-by-case basis whether such budgets will be required. Indeed, in cases where the paying parent’s income does not greatly exceed the $150,000 threshold, the trial judge may conclude that the added cost and delay of requiring a budget cannot be justified.”
Francis v. Baker, [1999] 3 SCR 250, 1999 CanLII 659 (SCC) at 40-45
