I. Income of Non-Resident Spouse; Currency Exchange Rate

AuthorJulien D. Payne - Marilyn A. Payne
Pages215-216

Page 215

Section 20(1) of the Federal Child Support Guidelines provides that, subject to subsection 2, where a spouse is a non-resident of Canada, his or her annual income is determined as though he or she were a resident of Canada. Where income is earned in a foreign jurisdiction, section 20 of the Guidelines requires its conversion into Canadian dollars in light of the applicable currency exchange rate.656Because there can be wide and rapid fluctuations in currency exchange rates, it may be desirable to determine the rate of exchange on the basis of the average or median rate over the preceding year, thereby avoiding unnecessary applications where there are frequent fluctuations in the exchange rate.657

Page 216

Section 19(1)(c) of the Guidelines empowers a court to impute income to a foreign resident whose income tax liability is significantly lower than that applicable to a Canadian resident. Pursuant to section 20(2) of the Federal Child Support Guidelines, which came into force on May 1, 2006,658in the converse situation where a foreign resident parent has effective rates of income tax that are significantly higher than those applicable in the province where the other parent ordinarily resides, the foreign resident’s annual income will be the amount that the court determines to be appropriate taking those rates into consideration.659Section 20 of the Federal Child Support Guidelines includes no provision for circumstances where the non-resident parent faces a significantly higher cost of living in the foreign jurisdiction that is unrelated to the operative income tax regime.660

[656] E.K.R. v. G.A.W., [1997] M.J. No. 501 (Q.B.); Hare v. Kendall, [1997] N.S.J. No. 310 (T.D.); Mascarenhas v. Mascarenhas, [1999] O.J. No. 37 (Gen. Div.), aff’d (2000) 18 R.F.L. (5th) 148 (Ont. Div. Ct.) (caveat added).

[657] Ward v. Ward, [2001] B.C.J.No.206; K.V. v. T.E., [2004] B.C.J. No. 792 (S.C.); A.D.B. v. S.A.M., [2006] N.S.J. No. 252 (S.C.); L.S.P. v. J.R.P., [2002] S.J. No. 35, 25 R.F.L. (5th) 150 (Q.B.); compare Horton v. Horton, [1999] O.J. No. 4855 (S.C.J.) (trial judge opted for the average of the over-the-counter rate and the rate reported at the date of the hearing). See also Kelly v. White, [2002] O.J. No. 5397 (S.C.J.); Pawlus v. Pawlus, [2004] O.J. No. 5706 (S.C.J.).

[658] SOR 2005-400, s. 2 (November 28, 2005), Canada...

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