G. Incomes over $150,000

Author:Julien D. Payne - Marilyn A. Payne

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Obligors with annual incomes exceeding $150,000 must pay the basic table amount of child support on the first $150,000. With respect to the income over $150,000, the court has one of two alternatives. It can order the additional amount prescribed by a percentage formula in the applicable provincial or

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territorial table. Or, if it finds that additional amount "inappropriate," the court can exercise its discretion to order a different amount, having regard to the child’s condition, means, needs, and other circumstances and the financial ability of each parent to contribute to the support of the child. Deviation from the table formula presupposes a finding that the amount thereby prescribed is "inappropriate." In Francis v Baker,129the Supreme Court of Canada concluded that the word "inappropriate" in section 4(b) of the Federal Child Support Guidelines does not mean "inadequate"; it bears its ordinary dictionary meaning of "unsuitable" or "inadvisable." Consequently, insofar as the obligor’s annual income exceeds $150,000, a court has the discretion to increase, decrease, or confirm the amount of child support prescribed by a strict application of the table formula. A point may be reached where the overall table amount is so far in excess of the child’s reasonable needs as to justify the court ordering a lower supplementary amount than that prescribed by the table formula relating to the obligor’s income in excess of $150,000. Some obligors, such as sports stars, may have astronomic incomes but short professional careers. In Bachorick v Verdejo,130the Saskatchewan Court of Appeal concluded that a court has no jurisdiction to build a fund to cover future contingencies, such as a child’s education, out of monthly table amounts of child support. Any judicial direction to such effect would negate the underlying premise of the Federal Child Support Guidelines that the amount of child support ordered reflects the current needs of the children. It would also constitute an unwarranted intrusion on the spending priorities of the custodial parent.

The relevant principles that were laid down in Francis v Baker are aptly summarized as follows by Finch JA (now Finch CJ) in Metzner v Metzner:

1) It was Parliament’s intention that there be a presumption in favour of the table amount in all cases.

2) The Guidelines 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.

3) There must be clear and compelling evidence for departing from the Guidelines figures.

4) Parliament expressly listed in s 4(b)(ii) the factors relevant to determining both appropriateness and inappropriateness of the table amount or...

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