MAINTENANCE AND SUPPORT - Child support - Calculation or attribution of income

Law360 Canada (May 10, 2023, 6:09 AM EDT) -- Appeal by the mother from the chambers judge’s decision setting the father’s guideline income without adding his bonuses and whether the doctrine of res judicata fixed the method by which the father’s guideline income must be calculated in the years after 2011. The parties married in 2001 and had two children. They entered into a Divorce and Property Contract (DPC) in December 2009, which dealt with s. 3 and s. 7 child support of the Federal Child Support Guidelines (Guidelines). Clause 17 of the DPC contemplated including bonuses in the guideline income calculation. They divorced in 2010. The desk divorce judgment recited that the father had a guideline income of $78,000, amount payable was based on his base salary and provided for the same adjustments based on bonuses received by him. The s. 3 child support ordered was the amount that would be payable for two children under the Guidelines. The amended child support order granted in 2012 stated that the father should pay child support amounting to $1,551 per month until the children were no longer children of the marriage as defined by the Divorce Act. Said support was based on his 2011 income of $108,863. The 2012 order did not provide any details about the calculation of the father’s guideline income and did not explain why “bonuses” provided for in clause 17 of the DPC and the desk divorce judgment, were excluded. In November 2020, the father brought a family application asking that his 2020 guideline income and forward be set at $104,865. The mother brought a cross application to set his guideline income at $154,071. The application was set down in special chambers in 2021. The father argued that the method of calculation used in the 2012 order was res judicata, and the same method of calculating his income had to be used in every future year, excluding the items described as “bonus”, “stocks”, and “savings plan”. The mother argued that the 2012 order merely set the father’s guideline income for 2010 and 2011 and did not necessarily apply thereafter. The chambers judge calculated the father’s guideline income without including his bonuses, using the same formula used in the 2012 order, but adjusted to reflect his changing income in each subsequent year, leading to this appeal....
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