“In this case, the father relies on his assertion that his RRSPs were equalized as part of the settlement effected by the consent order, as well as the fact that the RRSP withdrawal was a non-recurring event and was used to assist in the purchase of a home to argue that it should not be treated as income for child support purposes.
I would not accept these submissions. Subject to ss. 17-20 of the Guidelines, s. 16 provides that a spouse’s annual income for child support purposes is determined using the sources of income set out under the heading “Total income” on the T1 tax form. RRSP income is included as part of Total income on the T1 tax form. Accordingly, subject to ss. 17-20 of the Guidelines, RRSP income received in a particular year is presumptively part of a spouse’s income for child support purposes.
Section 17 of the Guidelines permits a court to depart from the income determination made under s. 16 where it is satisfied that would not be the fairest determination of income. In such a case, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable “in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.”
To begin with, I am not persuaded that the father has demonstrated that treating his RRSP withdrawal as income “would not lead to the fairest determination of … income”.
In Stevens v. Boulerice, 1999 CanLII 14995 (ON SC), [1999] O.J. No. 1568, 49 R.F.L. (4th) 425 (S.C.), Aitken J. declined for two reasons to exclude RRSP withdrawals from income simply because the RRSP had been the subject of an equalization calculation.
First, she noted that s. 16 of the Guidelines requires that RRSP withdrawals be included as income for child support purposes. Further, Schedule III to the Guidelines, which provides some special rules for adjustments to income for child support purposes in certain cases, does not make any special provision for RRSP income.
Second, Aitken J. observed that the equalization was a matter between the parents while the issue before her was a question of child support. She could see no reason why an available source of income to fund child support should be excluded because of dealings between the parents. The child support was not being paid to increase the mother’s lifestyle.
I find this reasoning persuasive. The clear wording of the Guidelines includes RRSP withdrawals as income and no special exception for RRSP withdrawals has been provided in Schedule III. Although I would acknowledge the possibility that the facts of a particular equalization could in theory reach the threshold of unfairness, I have no evidence about the specifics of the equalization calculation that occurred in this case and cannot so conclude.
Similarly, I do not consider the fact that the father may have used some or all of the RRSP on account of his house purchase as a factor creating unfairness in terms of characterizing the RRSP. Particularly in circumstances where he was not working, the father’s first obligation was to ensure that his children were properly supported. The fact that the father chose instead to buy a four bedroom house should not deprive his children of an available source of child support.
Finally, I am of the opinion, that some of the early cases relied on by the trial judge in P.(J.M.) v. K.(T.L.), at para. 161, which adopted the view that non-recurring withdrawals from RRSPs should essentially be automatically excluded from income for child support purposes, have been superseded by amendments to s. 17 and by subsequent case law such as Stevens v. Boulerice.”