Calgary Imputed Income Spousal Support Lawyers at the top rated* Vancouver and Calgary family lawyers firm of MacLean Family Law deal with dozens of cases where spouses have hidden income or fail to make proper efforts to work to their full capacity. MacLean Family Law is expanding their Calgary family lawyers and Calgary spousal and child support lawyer team. MacLean Family Law handles medium to high net worth family cases including Calgary Grey Divorce disputes.
In the Appeal decision of Shigehiro v Shigehiro, 2017 ABCA 392, a husband appealed the failure of the trial judge to find his ex wife could earn more as a waitress and server although the Trial Judge found her efforts to get work feeble.
[53] The appellant contends that the trial judge’s failure to impute income to the respondent was an error justifying appellate intervention, because the respondent’s evidence was that she made no attempts to find employment or training.
[54] A court may impute income to a spouse for the purposes of determining spousal support; although no express provision in the Divorce Act sets out how this is to be done, courts apply the same methodology as is used under the Federal Child Support Guidelines, SOR/97-179.
Calgary Imputed Income Spousal Support Lawyers 403-444-5503
In BC you do not need to prove intent to have income attributed but in calgary and the rest of Alberta our Calgary Imputed Income Spousal Support Lawyers note the test is more strict. In Shigehiro the Court of Appeal held:
[55] In Hunt v Smolis-Hunt, 2001 ABCA 229 (CanLII) at para 42 [Hunt], 286 AR 248, this Court ruled that a person seeking to impute income to another, under section 19(1)(a) of the Federal Child Support Guidelines, must adduce evidence that the obligor engaged in a “deliberate course of conduct for the purpose of evading child support obligations”. Proving a deliberate course of conduct requires “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”: Hunt at para 42. Very recently, in DBF v BF, 2017 ABCA 272 (CanLII) at para 77, the dicta recited above was applied, as binding authority.
Calgary Imputed Income Spousal Support Lawyers 403-444-5503
The efforts or lack thereof and other circumstances also matter explains Lorne N MacLean, QC founder of our highly rated* team of Calgary Imputed Income Spousal Support lawyers:
[56] In our view, while the trial judge decided that the respondent’s attempts at furthering her education and obtaining professional qualifications were “feeble”, this observation does not render reviewable the trial judge’s finding that the respondent was presently unable to work at employment that was realistically within her current employment ability.
[57] We do not read the trial judge’s reasons as suggesting that the respondent could have been at work, and ought to have been at work, earning employment income. Despite the appellant’s assertions, the pivotal findings of fact are to the contrary. The trial judge specifically found that “… but for the [motor vehicle accident], [the respondent] would not be entitled to an order of spousal support, given the facts before me. However, it is a factor, and [the respondent] needs some time to get proper treatment and resolution of her injuries so she can return to work and become self-supporting.” This is a finding that the respondent cannot presently work, and a finding that was reasonably available based on the evidence that the trial judge accepted, and was entitled to accept.
Health Issues Prevented Income From Being Attributed
[58] In essence, the trial judge did not impute income because on the basis of the evidence he did accept, there was no evidence that the respondent could at present, reasonably earn income. The work for which the respondent was trained and had experience was work that required a degree of physical ability that the respondent had not yet regained. Waitressing and bartending are not sedentary jobs.
[59] In sum, the record taken at its highest from the appellant’s standpoint falls well short of revealing palpable and overriding error in the conclusion that the respondent, howsoever unrealistic her hopes may have been, was not conducting herself in a manner showing evasion of capacity to be wholly, or partially, self-sufficient during the time period for which spousal support was ordered. The court below considered the respondent’s circumstances realistically, in light of both her present capacities and the opportunities available to her.
[60] While the appellant contends that imputation of income to the respondent can be justified on the mere existence of some level of capacity or, independently, by the existence of some level of opportunity which is inferred in isolation from other circumstances, this contention is neither the view of the Federal Child Support Guidelines as adapted to the Spousal Support Advisory Guidelines, nor the view of any decision of this Court.
[61] In our view, it would not have been realistic for the trial judge to impute income in this case. This ground of appeal is dismissed.
Calgary Imputed Income Spousal Support Lawyers 403-444-5503
In the end result the husband did not meet the onus of establishing his ex-spouse could earn more. If you are involved in a Calgary spousal or child support case and don’t feel your spouse is working to their capacity or declaring all of their income, pick up the phone to speak with one of our senior Calgary Imputed Income Spousal Support Lawyers at 403-444-5503.
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