WestlawNext Canada insight Blog

Digest of the Week — Are Non-Recurring Dividends "Income"?

Brown v. Brown |  (WestlawNext Canada)
2014 CarswellBC 1020 |  (Westlaw Canada)
British Columbia Court of Appeal

Family law | Support | Child support under federal and provincial guidelines | Determination of spouse's annual income | Shareholding spouses

Parties married, had three children and separated — Father was senior manager of company that created form of retirement package for senior management employees — Employees acquired shares in company, which they were required to pay for out of future dividends on shares themselves — Father elected to take part in plan and acquired shares in 2008 — In 2008 and 2009, substantial dividends were paid on shares, which went to pay down purchase price of shares and to pay taxes resulting from dividend income — Mother applied to vary child support — Judge ordered father to pay retroactive child support, but excluded dividends from father's income in determining amount — Mother appealed — Appeal dismissed — Judge rightly excluded dividends from father's income under s. 17(1) of Federal Child Support Guidelines — Exclusion was in keeping with objective of Guidelines — Dividend income was unusual in that it was not directly available to father — Father had not, in any real sense, received money, nor had he acquired asset that could be used to immediately obtain funds — Tax treatment of dividends had no effect on resources available to father because of nature of his share purchase arrangement — There was no basis to impute income in circumstances — Dividends did not represent resource that could have been available to father to pay child support — Father had no choice but to use dividends to purchase shares — Dividends were not ordinary income and were not analogous to return of capital — Dividends were more closely analogous to employer contributions to pension plan, which would not form part of guideline income.
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