Surrey Spousal Support is an issue that involves both an analysis of whether spousal support should be awarded on contractual, compensatory ( someone suffered disadvantage) or non- compensatory (means and needs). It also involves a proper calculation of each spouse’s income. The test for a Surrey spousal support claim is not what each spouse earns at the time of separation if they are underemployed or underutilizing their assets to earn income.
How Does Surrey Spousal Support Work For Income Calculations?
The Surrey spousal support award or refusal to make a Surrey spousal support award depends on your lawyer and you understanding what the real income of each spouse is. MacLean Law’s senior Surrey spousal support lawyers headed by Lorne MacLean, QC handle complex Surrey spousal support cases and have helped set the law in Canada’s highest courts on the issue.
Can I Quit My Job to pay Less?
People can’t quit their jobs to reduce the amount of their Surrey spousal support. Neither can people refuse to look for work to try to get higher Surrey spousal support.
What About My House Value and Gain: Does that get used for Surrey Spousal Support?
But what happens when property is divided to property that isn’t invested to earn interest, rental income or other profits? Does the court look at how assets are used? The answer is it depends what type of property we are looking at. Generally a family home won’t have some sort of income producing ability attributed to it to affect a Surrey spousal support claim. Similarly, a gain in value on an unsold family home or house proceeds from sale used to buy a new family home are unlikely to be viewed by courts as a source of income for Surrey spousal and child support purposes.
In the BC Appeal decision of Martin 2013 BCCA 327 the court dismissed the husband’s appeal he should pay less because his ex wife had real estate she lived in that he wanted a notional income attributed on.
Here is how the court explained their refusal to add notional income to the wife for purposes of deciding a Surrey spousal support case:
[21] In my view, the judge did not misapprehend her obligation to consider the full means of the respondent, nor err in failing to impute income on the non-income earning assets. The possibility that upon a sale of the assets, or putting them to different use, may earn income, in my view, does not mandate those actions. Whether income should be imputed is a question that engages the judgment of the trial judge who will be apprised of the particular circumstances revealed by the evidence and understand the personal dynamics at play in those circumstances The discretion to impute income, of course, includes the possibility no income will be imputed on account of the factor considered.
[22] Here the reasons clearly demonstrate that the judge understood that the respondent had assets that were not earning income. The question for the judge was whether those assets were so under-employed as to justify imputing income from them. I understand the reasons as rejecting imputation because of the character of the assets. Unlike a pool of cash which can easily be invested, it was understood at the time the appellant received a larger share of the assets, that valuable assets being received by the respondent came to her without income. It is not an error for the judge to remind herself of this feature.
[23] Further, I consider the judge’s comments on the undesirability of seeking to impute income on the strength of appreciation of an asset because to do so would erode the finality of the division of assets, has considerable force on the record before us, particularly as the appreciation has come to an asset awarded to the respondent knowing full well that it did not generate income.
[24] It is also significant that the appreciation of the family home is paper wealth. Short of sale of the asset, the increase in value is not easily extracted without incurring further expense.
[25] As to the other two assets, the record does not reveal a viable plan for realizing the hypothetical return. Apart from Okanagan Falls property being family recreational property and the reasonable desire of the respondent not to have strangers using personal property within it, we have no idea of the potential expenses that would be inherent in renting the premises for nine months a year at $1,000 per month. Nor can we assess the impact of selling the West 16th Ave Property on the employment income already imputed to the respondent.
[26] Last, I should comment on the reference to Chutter. Chutter recognizes that a housing choice may so exceed the needs of a party that, considering the marital standard, it is appropriate to reflect the mismatch in setting spousal support. Again, this is a consideration that engages the exercise of judgment at the trial court level. In my view, the case before us does not present such a mismatch of residence to reasonable family needs and marital standard that it can be said the judge erred in failing to impute some income to that asset.
Our senior family law department is the largest in BC and we are ready to help you meet the challenges of you Surrey Spousal Support case head on and to help guide you to a successful outcome. Call us today at 604-576-5400.
