Case reference: Bak v. Dobell, 2007 ONCA 304 (CanLII)
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Family law — Support — Child support — Child Support Guidelines — Income — Imputed income — Respondent suffering from mental illness and being unable to work — Respondent’s father providing him with place to live, contributing large amounts of money to his education in attempt to make him employable and paying him allowance — Trial judge not erring in refusing to impute income to respondent under s. 19(1) of Guidelines based on respondent’s lifestyle and his receipt of gifts from his father — Child Support Guidelines, O. Reg. 391/ 97, s. 19(1).
The appellant and the respondent are the parents of a 13- year-old child. The respondent had had little contact with the child since shortly after her birth. The respondent suffered from severe personality disorders, among other conditions. The disorders were chronic and severe, and rendered him effectively unemployable. His father, W, had made extensive efforts to assist him, funding career training and providing him with an allowance which covered his day-to-day needs. He also bought a condominium for the respondent’s use and registered it in the respondent’s name to instill a pride of ownership that he hoped would motivate the respondent to “behave in a more conventional manner”. The condominium was sold in 2004, and the respondent moved into a house owned by W. In 1998, the appellant obtained a consent order for child support in the amount of $117 monthly, based on the respondent’s then annual earnings of $14,500. The respondent was unable to maintain his employment and had not earned any significant income since then. The appellant brought an application to increase the respondent’s obligation to pay child support to $2,300 monthly by imputing income under s. 19(1) of the Child Support Guidelines based on the respondent’s lifestyle and his receipt of gifts from W. The respondent asked for the termination of the child support on the basis that he was not capable of earning any income. The trial judge dismissed the appellant’s claim and vacated the consent child support order. The appellant appealed.
Held, the appeal should be dismissed.
Under the Guidelines, child support is calculated on the payor’s total income for income tax purposes. Lifestyle is not a type of income, receipt or benefit included in total income. Rather, it is evidence from which an inference may be drawn that the payor has undisclosed income that may be imputed for the purpose of determining child support.
W’s gifts of money to finance the respondent’s training and to allow him to pursue a motorcycle building business could not be said to be income to the respondent under either the Guidelines’ definition of presumptive income or as income that it was appropriate to impute to the respondent. As for W’s provision of residences for the respondent, the residences were bought to provide the respondent with a roof over his head so that he would not live on the street. The respondent was not at liberty to sell those properties and use the funds for other purposes. The trial judge did not err in concluding that the capital value of the condominium or of the house in which the respondent was residing at the time of the trial, should not be imputed to the respondent as income. It was also within the trial judge’s discretion to refuse to impute to the respondent as income W’s payment of his medical, psychological, legal and other similar bills. The professional fees all came within a category of necessary medical or therapeutic expenses, or were truly in the nature of gifts to assist with unusual and non- recurring expenses. They were not given to the respondent for use in his day-to-day living, nor to be spent as he wished.
Although the legislature did not include the receipt of gifts given in the normal course in presumptive income, or as an example of an appropriate circumstance in which income will be imputed under s. 19(1) of the Guidelines, a court may consider whether the circumstances surrounding the particular gift are so unusual that they constitute an appropriate circumstance in which to impute income. In considering whether it is appropriate to include the receipt of unusual gifts in income, a court will consider a number of factors, including the regularity of the gifts; the duration of their receipt; whether the gifts were part of the family’s income during cohabitation that entrenched a particular lifestyle; the circumstances of the gifts that earmark them as exceptional; whether the gifts do more than provide a basic standard of living; the income generated by the gifts [page198] in proportion to the payor’s entire income; whether they are paid to support an adult child through a crisis or period of disability; whether the gifts are likely to continue; and the true purpose and nature of the gifts. In exercising his discretion not to impute income to the respondent on the basis of the periodic support paid to him by W, the trial judge considered that the intended duration of the gifts was limited; that the gifts were intended only to encourage the respondent’s self-sufficiency; that the gifts were made to a disabled child and were more in the nature of support for an adult child than in the nature of an allowance; and that the quantum of the gifts did no more than support a basic lifestyle. For those reasons, he was entitled to refuse to include the gifts in income. From a policy perspective, this type of support to an adult child is to be encouraged, not discouraged, particularly in the circumstances of this case where it might serve to provide a currently disabled parent with the means to become a self-sufficient member of society, and a parent capable of contributing to his own child.
*source: Canlii
