Child Support and Retirement
What are a parent’s child support obligations if they want to retire?
What do you do for child support if your spouse who does not have the children living with them decides to take a lower-paying job or want to retire?
In one case, the husband and wife had two children. They had signed a separation agreement. The children lived full-time with the wife. The parties decided to review the amount of child support the husband had to pay the wife 4 years after the separation agreement was signed.
When the husband and wife negotiated the separation agreement, they were both on track to retire when reached the “90 factor”, that is, when their years of service and their ages totaled 90. The husband decided to retire voluntarily with a retirement package from his employer before he reached the “90 factor” since the employer gave him this option a few years after the separation agreement was signed.
Section 19(1) of the Child Support Guidelines permits the court to impute or attribute income to a spouse when the spouse is intentionally under-employed or unemployed. The court held that the husband intentionally under-employed himself by taking a retirement package which permitted him to retire at an age earlier than the parties had expected or anticipated at the time that they negotiated the separation agreement.
The court explained that the husband’s decision to retire early had serious negative consequences that happen when a parent fails to provide for his children to the best of their ability, especially taking into account the fact that the husband was only 54 years of age and he had an important obligation to support his children who were 17 and almost 12 years of age.
The court concluded that the husband needs to ensure that, until he would have otherwise have normally retired, he will continue to provide fairly for his children to the extent of his income and financial means.”
The court ordered the husband to pay child support based on the income he would have been earning if he had not decided to retire before the normal retirement date.
In other words, you must look at the age of retirement that the spouses discussed during the marriage, common-law relationship, or the normal retirement date that a spouse can take to determine whether a spouse is intentionally under-employed or unemployed.
If a spouse retires at a time that is earlier than the discussed retirement date or the normal retirement date, they could be found to be intentionally under-employed or unemployed so that they would have to pay child support on the amount of income that they would have earned if they had not retired before the normal retirement date.
Make sure you spend some time with your family lawyer discussing this important issue in your separation or divorce.
If you have any questions about your separation, divorce or family law case and you would like our help, there’s a few ways to contact our office. You can leave a message on my Facebook law office page, visit my website at www.canadiandivorcelegaladvice.com, or call me directly at 905-434-8837. We would be happy to speak to you.
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