Coming to a proper Surrey determination of guideline support income for support cases is often tricky. A recent guideline income determination case from our highest court points out why it pays to hire a top notch Surrey spousal and child support lawyer to ensure disasters are avoided.
Don’t Make A Huge Support Mistake
Surrey determination of guideline support income for spousal and child support cases involves marshaling proper evidence in a cogent fashion to ensure the proper income is used to calculate the right amount of Surrey spousal support and to ensure the right Surrey child support calculation is made. Since support amounts can be substantial and paid for a long time a mistake can lead to an error of up to hundreds of thousands of dollars. You cannot afford to make such a mistake. Always consult with our MacLean Law Surrey spousal and child support lawyers.
For the purposes of both child and spousal support, there is a broad judicial discretion to determine and to even impute income to either or both spouses. However, both parties in a support case seeking income determination or imputation imputed to the other spouse have the burden of establishing an evidentiary basis for assisting the court come to the right figure. Surrey determination of guideline support income cases deserve a focused approach if you are going to win your case. Use our support calculators to get a rough idea of what is the proper amount assuming you know the correct amount to be used for income.
Test To Impute Income To Underemployed Spouse
The test for imputing income for intentional under-employment or unemployment is one of reasonableness, having regard to the parties’ capacity to earn income in light of their age, education, health, work history and work availability. A spouse’s capacity to earn income will include that person’s ability to work or to be trained to work. See Van Gool v. Van Gool (1998), 113 B.C.A.C. 200, 44 R.F.L. (4th) 314 at paras. 28-31, Barker v. Barker, 2005 BCCA 177, 45 B.C.L.R. (4th) 43 at para. 19, and McCaffrey v. Paleolog, 2011 BCCA 378, 24 B.C.L.R. (5th) 62 at para. 46.
Don’t Blame the Court If You Don’t Give Proper Proof Of Your Income
As we will see from the analysis of our Court of Appeal in Forest v. Forest, 2015 BCCA 328 below if you give no evidence or vague evidence that is backed up with proper proof and documents don’t complain if the court determines a figure for your income you don’t like. Further courts don’t just don’t just look at what someone is currently earning rather it looks at what they can really earn.
In Forest the male appellant appealed an order setting income for spousal support purposes alleging that the judge misapprehended the evidence concerning his billing practices and, as a result, made a palpable and overriding error. The Appeal was dismissed. The judge did not commit a palpable and overriding error. The appellant had failed to provide adequate evidence of his billing practices to permit the judge to undertake the assessment he says the judge should have done. The BC Court of Appeal explained the man’s problem as follows:
[19] I am, with respect, unable to conclude that what amounts to a failure to guess at a discount for hours spent on design amounts to a palpable and overriding error. The judge did not misapprehend the evidence because the evidence amounted to little more than a bare assertion that the appellant did not charge for time spent on design. The judge was not given an adequate evidentiary basis on which to adjust her estimate of income. There is no basis in the record to measure how material design time is to the calculation. Given the judge’s own treatment of the impact of an error in the hours worked of roughly 20% on her assessment of imputed income, it is difficult to see that she would have regarded discounting by some amount for design time to have materially affected her assessment of income.
[20] I observe further that the judge did take into account and consider the suggestion that the appellant would need to reduce his working hours, even though he had not led admissible evidence on the point. Again, the judge did not misapprehend the evidence. I would defer to the way the judge dealt with this matter.
[21] Finally, the appellant had obligations to make proper financial disclosure on this review application. He did not do so. Quite apart from his failure to do so, he did not provide the judge with a proper evidentiary basis to factor into account those points he now says the judge misapprehended and in relation to which he says she made a palpable and overriding error. The appellant’s opportunity to have these matters considered was in the Supreme Court. He did not take it.
The Moral Of The Support Mistake Story
The moral of the story is to hire a top lawyer early on in your case so you don’t overpay or sell yourself and your children short on fair spousal and child support. Meet with Lorne MacLean, QC at our South Surrey Office immediately if you have a difficult Surrey determination of guideline support income case. Call 604-576-5400.
