The recent BC Court of Appeal of RWL v. LB restates the settled law of imputing a realistic income to a paying spouse and the law is equally applicable to an underemployed recipient spouse.. We cannot allow children or spouses to be under supported because spouses deliberately or foolishly earn less then they can. Similarly in spousal support cases the paying spouse can’t be allowed to quit to frustrate support anymore than a recipient spouse can refuse to work or retrain to try to drive up artificially the amount of spousal support. Lorne MacLean, Q.C. has handled hundreds of these cases over the course of his nearly 30 years before the bar including cases in the Supreme Court of Canada on just these issues. Our firm has 4 offices across Bc and has lawyers and staff fluent in Mandarin, Cantonese, Farsi, Punjabi, Hindi, French and German. Call us at 1 877 602 9900. If you speak Mandarin or Cantonese please call our Mandarin speaking hotline at 604-682-6466.
Legal Principles
[26] Child support payments are based on both earnings and earning capacity. Payments are based on what the parent actually earns, and also on what the parent has the capacity to earn. A parent has a legal obligation to earn as much as he or she is reasonably capable of earning to meet the obligations to support the children: G. (S.) v. W. (G.), 2006 BCSC 991, [2006] B.C.J. No. 1463, and Earle v. Earle, 1999 BCSC 283, [1999] B.C.J. No. 383.
[27] This principle is reflected in s. 19(1)(a) of the Guidelines, which provides:
19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
[28] The principles applicable to the imputation of income were reviewed by the Court of Appeal in Watts v. Willie, 2004 BCCA 600, 247 D.L.R. (4th) 54, at para. 16:
[16] In Donovan v. Donovan (2000), 190 D.L.R. (4th) 696, 2000 MBCA 80, Madam Justice Steel gave the judgment of the court and wrote at para. 21:
The following guidelines may be considered when determining whether to impute income. (See Dr. Julien D. Payne, Imputing Income, “Determination of Income, Disclosure of Income,” Child Support in Canada, Danrab Inc., August 3, 1999.)
1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is “no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor” (Van Gool v. Van Gool (1998), 166 D.L.R. (4th) 528 (B.C.C.A.)).
2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.
3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.
4. Persistence in unremunerative employment may entitle the court to impute income.
5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.
6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.
