Calculating Child Support of High Income Earners – A Case Comment on Ghremida v Elgahwas, 2023 SKCA 23
October 9, 2024
Ghremida v Elgahwas, 2023 SKCA 23, is a recent Saskatchewan Court of Appeal case where the Court determined how child support payments are calculated when one parent has a high income. The case reinforces the principle that the Federal Child Support Guidelines (the “Guidelines”) continue to apply in cases of high-income earners, unless a parent establishes that the Guidelines amount is inappropriate given the circumstances of the child and the financial ability of each spouse to contribute to the support of the children. When a parent’s income exceeds $150,000 per year, the Guidelines amount may be inappropriate. This is determined by the Court at the judge’s discretion, based on evidence provided by the high-income earning parent.
Facts
In this case, husband and wife separated after a long marriage. The husband was a doctor with a high income of approximately $1 million per year, while the wife was a stay-at-home parent. At the time of the trial, the youngest child was in high school while the two oldest were young adults attending university.
The children continued to reside with the mother after the couple separated. The trial judge determined that child support should be paid for all the children in the total amount of $17,816 per month as determined by the Guidelines. The father appealed the trial judge’s Order for child support. He argued that the trial judge made a mistake by failing to reduce the amount of child support payable to the mother to reflect that he had been, and was prepared to continue, paying directly for many of the children’s expenses.
The Guidelines
Three sections of the Guidelines were central in this case:
- Section 3(1) of the Guidelines establishes the presumption that support for children under the age of majority is to be calculated using the tables contained in the Guidelines and the amount determined for Section 7 expenses. These tables provide the appropriate amount of child support per child based on the income of a parent. They are applied across Canada. Section 7 of the Guidelines addresses special and extraordinary expenses that are not otherwise accounted for in the tables. This includes expenses for post-secondary education.
- In this case, the father had agreed to pay for the children’s post-secondary expenses directly, in addition to the $17,816 per month in child support ordered by the trial judge.
- Section 3(2) states that when a child is over the age of majority, the Court can apply the Guidelines as if the child were a minor, meaning straightforward use of the tables, or the Court can order another amount deemed appropriate given the circumstances of the child and the financial ability of each spouse.
- Because two of the children were above the age of majority, the trial judge had to consider s. 3(2) of the Guidelines.
- Section 4 states that when the income of a spouse exceeds $150,000, the amount of child support payable by that parent can be determined by the same rules as s. 3, meaning the tables will be used, or the Court can decide it is appropriate to apply the first $150,000 of the income to the tables, while the rest is subject to an amount the Court deems appropriate given the circumstances of the child and the financial ability of each spouse.
- Because the father made approximately $1 million per year, s. 4 had to be considered by the trial judge.
Trial Decision
The two adult children were attending university full-time. The trial judge had no evidence that either of them were working, or expected to work, to support themselves in their young adulthood, and no evidence of their ability to contribute to their own educational expenses. Because of this, the trial judge concluded that both parents had accepted that they should financially provide for the adult children. Because of this expectation and the considerable means of the parents, the trial judge determined that child support under the Guidelines (applied as if the children were minors) was appropriate for both adult children. He noted the father was spending significant funds on the adult children. However this was the father’s choice and did not impact a child support order. Due to the affluent lifestyle of the family from the income generated by the father, Guidelines level support for the father’s entire income was found to be appropriate. Thus, $17,816 per month in child support was ordered.
The trial judge also ordered the father to pay the mother spousal support in the amount of $20,000 per month. This was adjusted downwards to accommodate for the fact that the mother would be receiving a large payment from the father for the division of family property and that she would be receiving child support payments that would increase her standard of living.
Court of Appeal Decision
The father’s appeal centred on the fact that he continued to voluntarily pay many of the adult children’s expenses directly and with an “open cheque book.” Despite interim child and spousal support orders before trial, he continued to pay university expenses directly, provided the children with luxury vehicles, and paid for credit cards the children were permitted to use unrestricted. The father argued the trial judge made an error by not reducing the table amount of support to reflect this direct payment of the children’s expenses. However, there was no argument made by the father that the child support should be reduced by a specific amount. The Court of Appeal determined this meant the father’s arguments could be interpreted two ways: as an argument that the amount of support was inappropriate due to the circumstances of the children and the financial ability of each spouse, or that the amount was appropriate but should be paid directly to the adult children, and not to the mother.
At trial, the father did not provide evidence to quantify the overall expenses the Court should use to determine child support. He did not present a budget of any kind. Because of this lack of evidence, the Court of Appeal found that the Order of the trial judge was appropriate. There was not adequate evidence to show that the Guidelines amount of support was inappropriate.
When assessing whether child support payments could be made directly to the children, the Court noted that while this could be ordered occasionally for adult children, failing to order this was not an error of the trial judge. The trial judge was never asked to make this Order and thus was not required to consider it as an option.
The father also argued that the child support payments constituted a wealth transfer to the mother rather than true support for the children. He pointed out that the mother was able to save money in the period after the trial decision. The mother did not deny that she had been able to build savings from the spousal support she received, but she had done so by lowering her standard of living enjoyed during the relationship, out of concern the father may not fulfill his support obligations in the future. The Court noted that although the purpose of child support is for care of the children, it is not improper that the custodial parent gains some benefit. This benefit can be accounted for by reducing spousal support, which the trial judge had already done. The objection of the father was based on a presumption that the mother would not use the funds correctly to support the children, which the Court found to be inappropriate. Courts presume that custodial parents will use money from child support appropriately for the current and future care of the children. If funds are not being used appropriately, evidence can be adduced to that effect, and the Court can order a variation of support.
Finally, the father argued it would have been more appropriate for the trial judge to have ordered that he support unlimited spending by the children instead of paying the Guidelines amount to the mother. The Court found that this proposal suggested that the father’s appeal was not grounded in an objection of the dollar amount of child support but in a desire to control the payment of his children’s expenses. The Court held that this approach of leaving support entirely in the father’s discretion would not provide the mother and children with the benefit of the protections the law offers to ensure appropriate child support is paid.
In summary, the Court of Appeal found that the trial judge had not ignored that the father had directly paid many of the children’s expenses and was willing to continue doing so. The Court found that this was simply irrelevant to the question of what amount of child support was appropriate given the circumstances of the children and the financial ability of each spouse to contribute to the support of the children. The appeal was dismissed.
If you have questions about your child support payments, please contact a member of our Family Law practice group.
About the Author:
Zina L. B. Scott is an associate lawyer in the Regina office and practices primarily family law, child protection, insurance defence, and civil litigation.
Written with assistance from 2024 summer student, Sydney Sulymka.
About McKercher LLP:
For nearly 100 years, McKercher LLP has grown deep roots across Saskatchewan, serving the community from offices in Saskatoon and Regina. Now, as one of the province’s largest and most established full-service law firms, we proudly carry on this legacy – following a client-first philosophy as we provide legal services and real solutions for the people who rely on us.
This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have