The Ontario Superior Court of Justice was asked to address this very question in the September 30, 2003 case of Moffatt v. Moffatt. After the couple separated in 1997, they entered into a separation agreement that placed their two children with the mother. The father was a teacher and earned $63,000 per year. In June 2001, he took advantage of a temporary window of opportunity and chose to take early retirement. He accepted the converted value of his teachers’ pension in the sum of $526,026.63 and left the workforce.

Mr. Justice Campbell decided that the father, by choice, had become intentionally under-employed as described in section 19 of the Child Support Guidelines. The court decided that the father made a decision to benefit himself and himself only. Because the father was only 54 years old when he took early retirement, and because he had an ongoing obligation to his two children, his decision had a significant negative impact on his two children.

The father was ordered to pay child support for his children in the amount of $929 per month based upon an attributed income of $70,200 per year that would continue up to the date when he otherwise would have been entitled to retire.

The Ontario Court of Appeal in the May 21, 2003 decision of Wylie v. Leclair did not think so. In that case, the parties lived together from 1985 to 2000 and had two children. After they separated, they agreed to a shared custody arrangement, with the children living with each parent on alternate weeks. A trial was held on the issues of support and division of property. Regarding the division of property, the trial judge found that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship. The trial judge awarded Ms. Leclair $150,000, and calculated this amount based on an equalization of net family property—a calculation that is used when married spouses separate by calculating each spouse’s assets and liabilities at the date of marriage and the date of separation.

Mr. Wylie appealed the trial judge’s decision to the Ontario Court of Appeal. The appellate court felt that the trial judge was wrong in attempting to provide an equalization of net family property for a common law couple.

When married spouses separate, it is necessary to equalize the parties’ net family property. However, this is not the law in common law relationships. The appellate court felt that the trial judge was attempting to adjust the law to provide for an equalization of net family property for common law spouses while there is no legal authority or presumption to do so.

The appellate court did consider the fact that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship, but also considered that Ms. Leclair lived rent-free for the duration of their 15-year relationship.

The appellate court reduced Ms. Leclair’s award to $70,000.

Canada Revenue Agency (CRA) is responsible for administering the Canada Child Tax Benefit. The benefit is a tax-free monthly payment for children under the age of 18 and is intended to help families with the cost of raising their children.

In situations involving separated or divorced parents, CRA pays the benefit to the parent who resides with the child and who primarily fulfils the responsibility for the care and the upbringing of the child. According to CRA, this is generally the mother, and therefore in situations of separation or divorce, CRA presumes the mother to be entitled to the benefit.

In cases where both parents claim the benefit, CRA will conduct a review to determine which parent qualifies for the benefit. If it is determined that the child resides with both parents, CRA will pay one parent for six months and then rotate the payments to the other parent for the next six months.

Details of this and further information can be obtained at the CRA website at www.cra-arc.gc.ca or by calling toll free 1-800-387-1193.