Calgary Imputed Income Support lawyers at MacLean Family Law ensure that a person’s true income is used to ensure proper child and spousal support are paid. Calgary Imputed Income Support Lawyers ensure both paying and receiving spouses work to their full capacity given their education, skills, work history, health and age. Call our award winning Calgary Family Lawyers at our downtown office at 403-444-5503 now if you feel someone isn’t working to capacity or paying their fair support payments.
Calgary Imputed Income Support lawyers 403-444-5503
People who hide income or work for cash face skeptical judges who can look at the person’s lifestyle and budget to look for inconsistencies. But what do Calgary Imputed Income Support Lawyers do when someone
- refuses to work,
- changes jobs from a better paying to lower paying but more personally rewarding job
- only works a few hours a week
- starts their own business although well paying jobs exist for them
- refuses to take a job because they think they should work a better higher paying job that doest yet exist for them
- wants to do volunteer work or stay home until children are out of high school instead of supporting themselves?
Our top rated Calgary Imputed Income Support lawyers explain that a deliberate refusal to work or quitting one’s job will lead to the court “imputing” income ( setting an income figure that they could really earn not the figure they are earning) to these spouses. So can a spouse’s unreasonable failure to earn income under all the circumstances.
Our Calgary Imputed Income Support lawyers are asked: So what does the test for imputing income look like exactly?
Calgary Imputed Income Support Lawyers at MacLean Family Lawyers refer our clients to a recent Alberta Queen’s Bench decision in Olsen v Olsen where the principles to be applied are set out:
(a) What is the standard for assessing earning capacity?
[92] In the case of child support, the Court of Appeal has clearly described the standard for assessing payor conduct for the purposes of imputing income. Under s. 19(1)(a) of the Federal Child Support Guidelines,
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 ….
In Hunt v Smolis-Hunt, 2001 ABCA 229 (CanLII), the majority interpreted this provision as follows, at paras 42, 70, and 73 [the latter two paragraph numbers are corrected from the CanLII online version]:
[42] The section should be interpreted to impute income where the obligor has pursued a deliberate course of conduct for the purpose of evading child support obligations. We read the section as requiring either proof of a specific intention to undermine or avoid support obligations, or circumstances which permit the court to infer that the intention of the obligor is to undermine or avoid his or her support obligations.
[70] We agree with the conclusions of Vertes, J. in Williams v. Williams (1997), 1997 CanLII 4486 (NWT SC), 32 R.F.L. (4th) 23 (N.W.T.S.C.), and Aston J. in Hall v. Hall (1999), O.T.C. 230 (Gen. Div.), that s. 19(1)(a) implies that before a court will impute income, there must be a deliberate course of conduct related to the purpose of the Guidelines. A court should only impute income under s. 19(1)(a) of the Guidelines when it has evidence of the obligor’s intention to avoid or undermine child support obligations.
[73] In keeping with those Guidelines objectives, therefore, the intent to evade support obligations may also be found where the unemployment, under‑employment or other acts of the obligors indicate a deliberate refusal to live up to the obligation to support one’s children.
[93] If the Hunt v Smolis-Hunt standard applied, Glenn could be found to be underemployed and an amount of income greater than his actual income imputed to him only if I found on the evidence that Glenn “pursued a deliberate course of conduct for the purpose of evading [spousal] support obligations;” if I found that Glenn “intended to undermine or avoid [his] support obligations.” But, in my opinion, Hunt v Smolis-Hunt does not supply the applicable standard.
[94] I concede that our Queen’s Bench jurisprudence on the applicability of the Hunt v Smolis-Hunt imputation standard to spousal support is not uniform. Some cases accept the applicability of Hunt v Smolis-Hunt. See, e.g., MacNeill v MacNeill, 2008 ABQB 535 (CanLII) at para 25; DBF v BF,2016 ABQB 484 (CanLII) at para 302; Bednarz v Bednarz, 2015 ABQB 447 (CanLII) at para 21. However, I find myself convinced by the reasoning of Justice Greckol (now of the Court of Appeal) in Jean v Jean, 2006 ABQB 938 (CanLII), as relied on by Justice Yungwirth in Gordon v Gordon, 2014 ABQB 596 (CanLII) at para 82:
[82] I reject any suggestion that income should be imputed to Ms. Gordon pursuant to s. 19(1) of the Federal Child Support Guidelines. Instead, I adopt the reasoning of Greckol J. from the case of Jean v Jean, 2006 ABQB 938 (CanLII) at paras 106-113:
106 In Myers v. Hawco (2005), 2005 NLCA 74 (CanLII), 262 D.L.R. (4th) 719, the Newfoundland Court of Appeal suggested at para. 42 that, “There is no specific provision regarding the imputing of income for purposes of spousal support. However, if income is imputed for the purposes of determining child support, there is no basis in principle for using a different income to ascertain spousal support.” Further, it stated at para. 43 that, “Whether income should be imputed is in the discretion of the trial judge. However, in exercising that discretion, relevant factors and evidence must be considered.”
107 The approach in Myers makes sense where there might be an inconsistent and awkward outcome where two different incomes are ascribed to a payor spouse in the course of the same application or trial. The courts in Ontario have done exactly as advocated in Myers and employed the Guidelines for imputing income in determining spousal support, even if child support is not at issue …. However, the Myers approach does not take into consideration that the objectives of a child support order differ from those of a spousal support order, as statutorily recognized in s. 15.2(6) of the Divorce Act.
108 The underlying rationale for a child support order is that the children of the marriage should not be worse off as a result of the marriage breakdown and that both parents should bear the responsibility of child-rearing despite the marriage breakdown. Entitlement to child support is automatic if the child is determined to be a child of the marriage. Quantum is determined by the Guidelines, which is a Regulation that has the force of law, and which requires the ascribing of a “hard and fast” number to the income of a payor spouse. This may explain the strictness and severity of the imputation provisions found in s. 19 of the Guidelines, particularly as they relate to the payor spouse’s underemployment or unemployment.
109 By contrast, the objectives of a spousal support are to: (a) recognize any economic advantages or disadvantages arising from the marriage or its breakdown; (b) apportion any financial consequences arising from the care of any child of the marriage over and above the obligation for support of any child of the marriage; (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) promote, as far as practicable, the economic self-sufficiency of each spouse within a reasonable period of time.
110 The condition, means, needs and other circumstances of each spouse, which must be considered under s. 15.2(4) of the Act, will necessarily affect the quantum of spousal support awarded, if any, as explained by the Alberta Court of Appeal inCorbeil v. Corbeil (2001), 286 A.R. 330, 2001 ABCA 220 (CanLII) at para. 47:
The right to support and its quantum will vary with each circumstance and with the abilities of the spouses to support themselves … Accordingly, quantum and duration of support will vary with the circumstances … There is no magic formula. Rather, maintenance is a matter of judicial discretion, taking into consideration those matters set out in the Divorce Act. [Emphasis added.] . . . .
112 With this overriding discretion and the totality of the circumstances in mind, and focusing on the “means” factor in s. 15.2(4) of the Divorce Act, the court can consider the payor spouse’s employment situation without the confusion of reference to the “underemployment or unemployment” criterion in s. 19 of the Guidelines. The “means” factor was described in the following terms by Langston J. in Bennett v Bennett … at para. 28 . . . .
113 Evaluation of the “means” factor in s. 15.2(4) of the Divorce Act allows the court to attribute to the payor spouse an amount of income that is based not only on his or her actual income, but his or her earning capacity, regardless of whether he or she is unemployed or underemployed. This inquiry necessarily involves an assessment of whether the payor spouse’s actions, as they relate to his or her employment situation, are reasonable in the circumstances.
[83] Although Greckol J. was dealing with the issue of whether or not income should be imputed to the payor of spousal support, this reasoning applies equally to the consideration under section 15.2(4) of the “means” factor in relation to the recipient of spousal support.
[95] The Jean/Gordon test is encapsulated in para 113 of Jean: “This inquiry necessarily involves an assessment of whether the payor spouse’s actions, as they relate to his or her employment situation, are reasonable in the circumstances.” This is a broader, less stringent test than the intentionality test inHunt v Smolis-Hunt. A payor who sincerely was not intending to avoid spousal support obligations could nonetheless be fixed with imputed income if there were a finding that the payor’s income earning conduct was not reasonable in the circumstances.
Get Prompt Help From One of Our Top Rated Calgary Imputed Income Support lawyers
MacLean Law’s Calgary Imputed Income Support lawyers have been ranked as the best family firm firm on multiple occasions by Top Choice Awards. Our Calgary clients asked us to open a downtown calgary office to help them with divorce and relationship breakdown cases and help them move forward. Our Calgary Imputed Income Support lawyers would be happy to meet with you at our downtown Calgary office in Bankers Hall.
