Lachapelle v. Vezina, [2001] W.D.F.L. 174, 11 R.F.L. (5th) 328

In this case Justice Linhares de Sousa was called upon to make a determination regarding a mother’s child-support obligation. The parties were separated for 10 years and had two children, David and Michel, who were 15 and 11, respectively, when this judgment was delivered. At the date of separation it was decided that the children would remain in the custody of their mother. In 1999 (after 10 years of separation), the children switched residences and moved in with their father. Consequently, his support obligation was terminated and alternatively Ms. Vezina was required to pay support.

Ms. Vezina sought a reduction in her child support payments as a result of her personal circumstances, she had just given birth to a child and was on maternity leave. This caused her to receive a reduction in her income, earning only a percentage of what she regularly made. Also, Ms. Vezina decided that she would take an extended maternity leave. The effects of said decision were that she would not receive any form of income from October 2000 until January 2002, which is when she would resume employment. Essentially, Ms. Vezina intentionally caused herself to be unemployed. Pursuant to the Child Support Guidelines income will generally be imputed to a payor parent who engages in intentional underemployment or unemployment unless it is required based on the needs of a child (see: s. 19(1)(a)). Ms. Vezina attempted to justify her decision by stating that since she was able to stay home for prolonged periods of time with her two elder children, her daughter should not be deprived of the same opportunity because of a support obligation imposed.

Justice Linhares de Sousa reviewed the case law hailing from provinces all over the country. She determined that although there is a tendency to not impute income unless a parent is seeking to undermine or avoid his or her support obligation (Williams v. Williams), Ms. Vezina’s obligation to meet the needs of her new child did not effectively eliminate the obligation she had to financially support her two other children (first family first principle). Her explanation did not satisfy the test enunciated in s. 19(1)(a) seeing as how her unemployment was not necessarily required by the needs of the child. Nor did the court believe that the period of parental leave she was seeking was reasonable under the circumstances (Omah-Maharajh v. Howard). Moreover, the absence of support payments would result in financial sacrifice being endured by David and Michel since their father’s income was reasonable but not necessarily sufficient to adequately support them. In concluding, Justice Linhares de Sousa remarked “Clearly the needs of the new born justify some relief being given to Ms. Vezina. Accepting the reduced income on her part during her paid maternity leave during the year 2000 was therefore reasonable. Anything beyond that in my view is unreasonable, unfair and not supported by the circumstances of this case.”

Once her paid maternity ended (during which her support obligation had been reduced to account for the change in her income) her regular salary was imputed to her and her support obligations resumed in the amount off $405.00 per month, per child.

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