AA. Automatic Annual Variation

Author:Julien D. Payne - Marilyn A. Payne

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In order to avoid the necessity of future applications to vary a child support order, the court may devise a procedure that will enable the parents to recalculate child support and their respective ongoing contributions to special or extraordinary expenses under section 7 of the Federal Child Support Guidelines.384

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In MacDonald v. MacDonald,385the father’s base salary in 2008 had been $38,438 but he earned a total income of $72,987 because of unusual amounts of overtime which were unlikely to be repeated. In fixing the table amount of child support payable by the father under the Federal Child Support Guidelines, the trial judge attributed an income of $45,000 per annum to the father. She also ordered a recalculation of child support on January 15 of each year, if the father’s income for the preceding calendar year exceeded $45,000. On her appeal, the mother argued that the trial judge erred by not giving adequate consideration to the enforcement difficulties she might face with the recalculation provisions in the order for corollary relief. She further argued that the trial judge had erred by misapplying the Guidelines which require a determination of the father’s income, regardless of how difficult that might be or, alternatively, in setting the father’s income for 2009 at $45,000. Having admitted fresh evidence by way of correspondence received from the Director of the Maintenance Enforcement Program indicating that the program would not enforce any recalculated amount of child support unless the parents agreed on the amount, the Nova Scotia Court of Appeal observed that the mother had other means of enforcing the recalculation provisions. Furthermore, the Maintenance Enforcement Program would enforce the court-ordered monthly payments, even if the parties were unable to agree on recalculated payments. Given the enforceability of the court-ordered payments, the availability of other means of enforcing the recalculations, albeit by resorting to the court, and the need to set a fair amount of child support, the Nova Scotia Court of Appeal was not satisfied that the trial judge erred by giving insufficient attention to the enforcement issue. Indeed, it ventured the opinion that the trial judge’s foresight in proceeding as she did in the particular circumstances of this case might improve the prospect of automatic adjustments to the amount of child support without the need to resort to the court. On the second issue...

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