What is the test for Imputing High Income Spousal and Child Support? Fraser MacLean has had a number of recent wins Imputing High Income Spousal and Child Support and he and summer student Arissa Javer share the test for winning these cases.
Vancouver Imputing High Income Spousal and Child Support in BC Tel: 604 602 9000
In December 2023, MacLean Law lawyer Fraser MacLean successfully won an ultra-high net worth case at the Supreme Court of British Columbia on behalf of his client, a mother of three living in West Vancouver. The parties went to court in late September 2023 on account of conflicts relating to their incomes, which directly impacts spousal support and child support payments. On December 14, 2023, the judge ruled that the husband pay $16,062 per month in child support to the wife and ordered the husband to pay monthly spousal support on the mid-range of the spousal support advisory guidelines, based on an imputed annual income of $1 million, despite the husband arguing his income to be $155,000.
Kelowna Imputing High Income Spousal and Child Support Tel: 778 754 1542
More recently, in July 2024 at the Supreme Court of British Columbia, MacLean Law West Vancouver and Kelowna family lawyers Simran Hothi and Louisa Ledesma won another imputed income and support case for their client. The husband asserted an income most recently of $15,895. The court imputed the husband’s income to nearly ten (10) times this amount, leading to success for MacLean Law’s client for monthly spousal support payments.
The above cases focused on income imputation, spousal support and child support – all three of which are routinely dealt with by MacLean Law lawyers and will be examined in this blog.
What Does Income Imputation Mean In BC? Tel: 604 602 9000
Key aspects of divorce are child support and spousal support obligations, both of which allow the children and non-paying parent to be financially protected. Child support and spousal support are based on the parties’ incomes, and, frequently, requires income imputation of one or both of the parent’s incomes. For instance, when a court determines that one or both parties are able to earn more income or are falsely reporting their true income, they can impute the parties’ incomes. This means that the paying spouse is ascribed an income for support purposes which they are not actually earning. Under court orders, then, the paying spouse would have to pay child and spousal support based on a higher income — not their stated income. Imputing High Income Spousal and Child Support cases are tricky so call the lawyers at MacLean Law.
Victoria Imputing High Income Spousal and Child Support section 19(1) of the Federal Child Support Guidelines lists other circumstances where imputing income may be necessary. Some of these circumstances include when the spouse is excused from paying income tax, when the spouse unreasonably removes expenses from their income, and when the spouse has not provided their income information when they are under a legal obligation to do so. Imputing High Income Spousal and Child Support is complicated and needs a proper legal analysis by experienced lawyers such as those at MacLean Law.
The Test for Imputing Income in BC
For income to be imputed to a spouse in BC, the other spouse must advance this claim and provide evidence to support it. While income imputation is a fairly common part of divorce proceedings, the test for it involves many factors.
As asserted in Smith v. Smith, 2023 BCSC 991 at para 37:
[37] 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.
Further, as stated in Haley v. Haley, 2022 BCSC 1945 at para 134:
[134] The imputation of income should not be the product of speculation or guess-work. The court must find that the parent is realistically capable of earning the income that is sought to be imputed and determine whether they have taken reasonable steps to obtain employment commensurate with factors such as age, health, education, skill and work history.
It is important to find Vancouver and Kelowna child and spousal support lawyers, like our MacLean Law lawyers in both Vancouver and Kelowna, who deal with imputed income cases on a constant basis. Our lawyers are able to analyze the above factors in great detail and thus navigate the income imputation process with ease and success.
Zhang v. Chen, 2023 BCSC 2206
Background
The parties in this case married in 2008 and had three children together. The wife lived in China until 2018. The wife then moved to Vancouver with her three children.
Income Imputation & Support in Zhang v. Chen, 2023 BCSC 2206
As this case was focused on income imputation, the court emphasized the need to sufficiently support the imputation with evidence:
[65] As noted in Tang v. Cheng, 2020 BCSC 1341, as a general rule, income should not be imputed to a spouse on an interim application unless the evidence is properly developed or there are appropriate circumstances. The court in Tang referenced I.F. v. R.J.R., 2015 BCSC 793 for that proposition although, the court in I.F. was not that definitive, but rather acknowledged that there was authority against doing so, but in that case still imputed income finding that that payor was “playing fast and loose in representing income” (at para. 135).
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[73] While I do not agree with the respondent that income is not to be imputed on interim applications, I do agree that if the court does so, it should exercise considerable caution and be satisfied that there is sufficient evidence to support the imputation or, to paraphrase the court in I.F. and P.W., be satisfied that the evidence as to the payor’s lifestyle is so incongruous with the payor’s claimed income that the payor’s evidence is objectively questionable.
While the husband claimed that his annual income was $155,000, the wife asserted it was close to $2.7 million. Thus, the wife advanced a claim to impute the Husband’s income to $2,762,000 per year:
[3] Alternatively, the claimant seeks child support pursuant to the Federal Child Support Guidelines SOR/97-175 (the “Guidelines”) and spousal support in the high range as set out in the Spousal Support Advisory Guidelines (“SSAG”) based on an imputed income for the respondent of $2,762,0000 per year, and $100,000 for herself.
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[32] [The claimant] says that she cannot work as she is a homemaker. The tutoring that she previously undertook cannot be done now as it would, she argues, interfere with her parenting. I note, however, that there has consistently been a full time nanny employed by the parties.
[33] For the purpose of this application, the claimant is prepared to accept that she could work part-time providing private tutoring of students after school and on weekends, such that, she says, her income should be imputed to be $100,000. She does not agree that it should be imputed at $200,000, as argued by the respondent, based on her 2016 and prior level of earnings.
Imputing High Income Spousal and Child Support Lawyers Win
After in-depth analysis, inquiries, and inspection of the husband’s income from our MacLean Law lawyers, the judge settled on imputing his income to $1 million – much more than what he had initially submitted. This was one of the highest interim support awards in BC:
[87] Having regard to all the financial circumstances of the parties, applying a rough justice approach, and accepting that the respondent’s income has likely been affected by COVID, I impute the respondent’s income in the amount of $1M.
Feng v. Fang, 2024 BCSC 1271
Background
This case deals with a long-term marriage, as the parties were married for over 30 years. They married in 1990 in China and separated in Canada. During their marriage, the wife was the primary caregiver of their two children while the husband financially provided for the family and worked full-time.
The parties had an independent daughter, and a son, aged 27, who is still a “child of the marriage” under s. 3 of the Divorce Act.
The wife brought an application for interim spousal support. The husband argued that he did not earn much income, yet the court found his income submissions to be contradictory.
Income Imputation & Support in Feng v. Fang, 2024 BCSC 1271
In this case, the wife sought interim spousal support based on an imputed annual income. She claimed that she was eligible for spousal support on a compensatory and non-compensatory basis.
Once again, the judge in this case emphasized the importance of evidence when imputing income:
[63] The court has broad discretion to impute income, and it is not subject to the restrictions in ss. 16–18 of the Spousal Support Advisory Guidelines: Ouellette v. Ouellette, 2012 BCCA 145 at para. 66. The court may “employ common sense” in deciding to impute income: Riemersma v. Riemersma, 2013 BCSC 474 at para. 39.
[64] Generally, income should not be imputed on an interim application unless there is a properly developed evidentiary basis for doing so or other appropriate circumstances: Tang v. Cheng, 2020 BCSC 1341 at para. 108.
Another Imputing High Income Spousal and Child Support Win By MacLean Law
Our MacLean Law Kelowna Family Lawyers worked hard to obtain justice for their client. They examined the husband income in detail, found contradictions in the information he submitted, and presented their findings to the court, all leading to their victory. The judge ended up imputing an income of $127,515 to the husband.
[66] I am satisfied that in the circumstance of this case, it is appropriate to impute income to Mr. Feng on an interim basis. There is a sufficient evidentiary basis for an interim award based on an imputed income. The Court should not accept Mr. Feng’s evidence about his income, and he should not be rewarded by his lack of financial disclosure.
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[70] Mr. Feng has at least 13 years of experience as a Feng Shui consultant. He was reportedly well-known and respected in the field. I therefore conclude that it is appropriate to impute an income of $127,515 to Mr. Feng.
It is clear, therefore, that MacLean Law Vancouver and Kelowna family lawyers will leave no stone unturned when it comes to analyzing and imputing income. Income imputation enables fair determination of income available for both parties for the purposes of support, and our Kelowna Family Lawyers work hard to achieve what is fair for their clients.
With Kelowna’s growing population, our Kelowna Family Lawyers will be available to assist on all family matters, including income imputation, and Kelowna spousal support lawyers and Kelowna child support lawyers.
Fraser MacLean Win Landmark AI Case: Zhang v. Chen, 2024 BCSC 285
MacLean Law lawyers are experts on all aspects of divorce and separation, such as income imputation, and are making legal history in the process. They are working on forward-looking cases, expanding the scope of Canadian law and constantly breaking new legal ground.
A few months following Fraser MacLean’s win in Zhang v. Chen, 2023 BCSC 2206, Fraser MacLean was lead counsel in Canada’s first landmark case regarding the use of AI-generated legal cases. This case was centered around the husband’s application to have parenting time with his three children. However, his parenting application was dismissed, and the judgment solely focused on costs spent by Ms. Zhang for the time and preparation spent by MacLean Law researching ChatGPT-generated cases inserted by opposing counsel in the notice of application.
The fake legal cases discovered by MacLean Law were M.M. v A.M., 2019 BCSC 2060 and B.S. v. S.S., 2017 BCSC 2162. Despite being non-existent, these cases seemed genuine and factual, citing precedents of parents living abroad who have obtained parenting time. The case underscores the dangers of AI in the legal profession and of the importance of in-depth analysis of cases.
The use of AI cases in the legal realm can have serious repercussions — financially, socially, and emotionally. Not only does the use of these cases result in additional, unneeded research by counsel, but it also impacts clients’ chances to obtain justice. As the judge stated in this case:
[29] Citing fake cases in court filings and other materials handed up to the court is an abuse of process and is tantamount to making a false statement to the court. Unchecked, it can lead to a miscarriage of justice.
As lead counsel, Fraser MacLean found great success and obtained justice for their client once again.
MacLean Law wins 2024 Canadian Family Law Firm of the Year
MacLean Law is delighted to announce that it was named Canada’s 2024 ‘Family Law Firm of the Year’ at the Canadian Law Awards.
The Canadian Law Awards celebrated outstanding achievements in the Canadian legal profession at the Liberty Grand in Toronto on May 9, 2024.
Contact MacLean Law Today
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