Vancouver Underemployment Support Lawyers help ensure paying spouses to work to their full capacity and that receiving spouses also do not shirk their responsibilities to try to become or remain self-sufficient. Making sure both spouses work to their capacity impacts both spousal support and child support. Calculations of proper support are only accurate if the true incomes of the parties are used. Maclean Law recently set a record high spousal and child support award attributing income in the leading case of DEVATHASAN.
In British Columbia, parents are responsible for the financial support of their children. Each parent’s income is a key factor in calculating out how much child support is owed or received. In some cases, parents intentionally reduce their income in order to avoid the responsibility of paying support or as a method of increasing the amount of support received. They may cut back work hours or refuse to work completely. When spouses follow a scorched earth policy, our top-rated Vancouver Underemployment Support Lawyers jump into action to help you and your children obtain justice.
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Parents that attempt to perform these actions falsely believe they’re hurting the other parent or “cheating the system.” Unfortunately, it’s the children that are the real victims of these behaviors, and the Vancouver Underemployment Support Lawyers at MacLean Law can help you put a stop to it. Because the Family Law Act requires Courts to look at the best interests of the children, judges can “impute” income to parents who are not working full-time and/or to their full earning capacity.
Voluntary unemployment occurs when a parent is able and has the opportunity to work, but chooses not to. This may include:
- loss of employment due to misconduct (or illegal activity)
- voluntary early retirement
- ceasing work to return to school
- voluntarily quitting
- delaying collecting payment for work done
Our skilled Vancouver Underemployment Support Lawyers explain that factors to consider include the payor’s capacity to earn income in light of his or her age, education, experience, skills, health, work history, ability to be trained, other obligations and work availability”, Marquez v Zapiola, 2013 BCCA 433 at para 37.
These voluntary actions will likely also result in an imputation of income, as the parent is in control of his or her income. Get a strategy for dealing with shirkers and slackers from one of our top-rated Vancouver Underemployment Support Lawyers. Contact us now.
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Voluntary underemployment occurs when a parent makes weak efforts to find employment at the same (or better) level of income that was previously earned. The court will examine recent work history and qualifications to decide if a parent is working below their full potential. This can also include intentionally cutting back on hours and the refusal to use or invest assets.
In the case of a career change, the court will consider the extent to which the children will ultimately benefit from the career change to decide if the parent is voluntarily underemployed. Tal Wolf, Vancouver Underemployment Support Lawyers notes short term pain for long term gain may justify a career change if it will lower income for a short period but result in a larger income over time.
When a parent is unemployed or working below full capacity, the court will consider the reasoning behind the unemployment (or underemployment).
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Income may also be imputed when a parent drops from full-time employment to part-time employment to pursue additional education (or some other interest – a hobby, volunteer work or travel). Additionally, if a parent leaves a job to start their own business, income may be imputed to him or her.
Income imputation cases, however, are rarely so simple and appear to be highly discretionary in their interpretation. A few weeks ago in Bryan v. Bryan, 2019 BCSC 248, the husband claimed that after separation, the wife procrastinated and failed to become self-sufficient. The wife testified that it was too difficult for her to seek outside employment while she was still living in the home. In addition, she said that she suffered from alcoholism, had only recently become sober and was seeking job counseling. She also claimed to be dealing with stress and was on anti-depressants.
The Court found that the wife did not begin looking for training programs in a timely way. Her evidence was that she was unable to begin seriously looking for training and work until she moved out of the home, but she did not begin her training program until over a year later. But the Court did not fault the wife for taking a school-district position that gave her summers off:
35 I am not prepared to accept that every job in the school district is an underemployed position simply because the schools are not in session in the summer months. I find that Mrs. Bryan has acted reasonably in training for and entering the job market and that she is on a path to obtaining a full-time position in the school district. I do not accept that the time off in the summers in the school district position renders such a position inadequate or less than full-time. Further, while Mrs. Bryan is currently working in a part-time position, I accept that she is working towards a full-time position in the school district.
. . . .
53 I find that the marriage breakdown has resulted in economic hardship for Mrs. Bryan. She has experienced a significant decline in her standard of living, and the standard of living she is able to provide for her children while they are in her care.
54 I am satisfied that Mrs. Bryan has taken reasonable steps along the road to self-sufficiency. While she is not yet self sufficient, and the economic hardships for Mrs. Bryan are not yet ameliorated, I am satisfied that she is heading in the right direction.
Ultimately, the wife in Bryan was found to be entitled to non-compensatory support, based on the well-known Bracklow principle recognizing “the artificiality of assuming that all separating couples can move cleanly from the mutual support status of marriage to the absolute independence status of single life, indicating the potential necessity to continue support, even after the marital ‘break'”. Income was not imputed to the wife.
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Regardless of the circumstances, if you suspect that your spouse is intentionally working less than their ability and availability would allow, the most effective way to change their mindset and influence them back towards the workforce may be to apply legal pressure and threaten to attribute income through the courts. The BC Family Support lawyers at MacLean law have the expertise to help you bring this pressure to bear.