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RETIREMENT DOES NOT AUTOMATICALLY END CHILD SUPPORT OBLIGATION

JULY 2023

Wilson Law successfully argued in the Court of King’s Bench in Alberta that a parent’s retirement from work does not end that parent’s continuing obligation to financially provide for dependent children.

As Justice L.K. Harris stated when imputing income ” [a] parent is required to act in a manner reflective of their financial obligations to their children and cannot be excused from these obligations: Mohamud v Abdullahi, 2023 ABKB 371 AT PARA 39 . . . AND THAT THERE IS A “fundamental principle that children have a right to support and a parent is required to act in a manner reflective of his or her obligations and cannot be excused from support obligations. Without children, the Father would have every right to retire. However, this is not the fact scenario before the Court. The fact is, he does have children and he is obligated to support them in a way that is consistent with his capacity to do so.”

OUR LAWYER, THERESA WILSON, REPRESENTED THE MOTHER MS. ABDULLAHI (“MOM”). MOM HAD NOT WORKED FOR MANY YEARS BECAUSE OF A DISABILITY FOR WHICH SHE RECEIVED AISH. MOM HAD PRIMARY CARE OF 4 CHILDREN RANGING IN AGE FROM 12 TO 18 WHO ALL STILL REQUIRED FINANCIAL SUPPORT FROM BOTH PARENTS. THE FATHER (“DAD”) DECIDED TO RETIRE AT 65 ON CPP AND PRIVATE RETIREMENT BENEFITS THAT GENERATED VERY LOW INCOME. DAD THEN REFUSED TO PAY CHILD SUPPORT.

MOM WAS FORCED TO BRING THE MATTER TO THE COURT OF KING’S BENCH. MOM ARGUED THAT, IN ALL THE CIRCUMSTANCES, DAD SHOULD HAVE AT LEAST FOUND A MINIMUM WAGE JOB TO SUPPLEMENT HIS EARNINGS. DAD ARGUED AGAINST THAT AND WANTED HIS CHILD SUPPORT PAYMENT REDUCED. THE COURT HEARD THAT DAD HAD been terminated from his prior job, and then decided to retire.

Dad alleged various physical ailments, but offered next to no evidence to establish his skills, training, and experience; further Dad’s evidence regarding his medical conditions was vague, at best. The Court considered the reasonableness of Dad’s retirement given his age, education, experience, skills and health, and the fact that he had been laid off from his employment.

Ultimately, the Court determined that Dad had not established that his health difficulties made it reasonable for him not to have worked. Justice Harris considered the fact that Dad’s lay off was not a voluntary decision and was beyond his control, and further it could be expected that this event would be followed by a certain period of time during which Dad would be unemployed.

The Court then went on to determine what a reasonable time of unemployment would be, and whether Dad’s decision to retire instead of finding new employment within that period was reasonable given all the circumstances. In recognizing that Dad was 68 and perhaps had some limitations, Justice Harris concluded that Dad had the capacity to work at a part-time, minimum wage job, and that it was reasonable for Dad to have found such employment BY THE TIME HIS SEVERANCE PAY, MADE IN LIEU OF EMPLOYMENT INCOME, WAS EXPECTED TO HAVE RUN OUT. As a result, Dad’s income was imputed by $15,600 (part time minimum wage) in addition to his CPP and retirement benefits.

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