M. No Pat Formula

Author:Julien D. Payne - Marilyn A. Payne

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For the purpose of determining the amount of spousal support to be ordered pursuant to section 15.2 of the Divorce Act, the court may impute income to one or both of the spouses. The court may find it appropriate to impute investment income to the applicant in light of the attendant circumstances, including rental income and tax write-offs relating thereto and a prospective equalization payment. However, the court may refuse to impute employment income where the applicant’s historical and current child-care responsibilities render it impractical for her to pursue employment opportunities for some time, even though future part-time employment is judicially envisaged once the demands of the children have diminished.318Section 18 of the Federal Child Support Guidelines empowers a court to include corporate profits in the income of a parent who has control over whether dividends are paid and what corporate earnings will be retained. There is no reason why the principles enunciated in section 18 of the Guidelines and in caselaw interpreting that section should not apply to spousal support as well. If a court decides to exercise its discretion to include corporate profits in the obligor’s income for spousal support purposes, the extent to which such profits should be imputed to the obligor will be determined by the individual facts of the case.319There is no general philosophy that spousal support should be assessed in an amount that will equalize the incomes of the spouses or their respective lifestyles. Any such general approach would impose a superficial response to a complex problem, whereas the law must seek to balance competing interests in light of the diverse factors and objectives specified in the applicable legislation.320Of course, an equalization of incomes may sometimes be appropriate after due regard is paid to the income, assets, means, and needs of the spouses. Such a result tends to occur more frequently on the dissolution of long traditional marriages involving spouses of low income who have little or no future earning potential. It may also be appropriate in circumstances involving middle-income spouses where the differential between their respective incomes is perceived as attributable to the career sacrifices made

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by one spouse by virtue of homemaking and child-rearing responsibilities assumed during the marriage or on its dissolution.321

[318] Brophy v Brophy, [2002] OJ No 3658 (Sup Ct); compare...

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