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The matter of Murdoch-Woods v. Zywina was heard by Justice Wright of the Ontario Superior Court of Justice over the course of three days, with the judgement coming down on January 28, 2011.  The final issue, other than costs, that needed to be resolved by the parties was the calculation of the payor father’s income for the purposes of determining what his child support obligations were, and what they should have been in the past.  The parties could not agree on what should be taken into account in determining “income” for the purposes of the Federal Child Support Guidelines (“CSG”).

A temporary Order for child support was made in October 2008, where it was determined by Justice Warkentin that the father earned $49,667.00 in 2007, after which time the father was given six months to return to Court with evidence of his actual income.

In 2007, after losing his job, his accrued pension in the amount of $12,381.00 was rolled-over into an RRSP.  This showed up on his 2007 income tax return as “income” and was factored into Justice Warkentin’s calculation.  In 2008, the father withdrew approximately 75% of the money rolled into the RRSP, as he remained unemployed.

The mother argued that this money should have been used to calculate income for the purposes of determining child support.  The father, Mr. Zywina, argued that there was some “double-dipping” going on.  Ms. Murdoch-Woods also suggested her ex-husband was intentionally under-employed and that his income should include Employment Insurance retraining benefits he received.

As a result, sections 16 and 17 of the CSG were the relevant legislative starting points for Justice Wright.

Justice Wright advised that a literal reading of section 16 of the CSG lends towards the mother’s argument.  However, Judges are often left with the task of reading the statute in a way that prevents an absurd result, a practice otherwise known as “constructive statutory interpretation.”

Section 17 of the CSG also provides Justice Wright, and others in his position, with a leg to stand on because it allows for deviation from the strict language of section 16 where the income as determined under said section was deemed not to be the “fairest” determination.  Turns out the father was indeed ‘Zy-wina’ on this point.

With respect to the issue of the retraining benefits, the father was also successful in his argument that it should not be included as income.  Justice Wright explains that “this is not money he ever saw.”  The money was paid directly to the college at which the training took place and there was really only one use it could have been put to – training.  Mr. Zywina did not have access to this money for any other purpose or to directly generate income in any way.