New BC Imputed Support Income Onus Decision provides the following legal principle: Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case for imputation of income (established often by the sheer drop in income earned before by a spouse), the onus shifts to the individual seeking to defend the income position he or she is taking.
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Courts derive the power to impute income primarily from section 19 of the Federal Child Support Guidelines, which lists specific grounds including intentional underemployment, unreported income, and income from a corporation under a payor’s control. For spousal support, the same principles apply under the Spousal Support Advisory Guidelines. Judges have broad but not unlimited discretion — they must have a reasonable evidentiary basis and cannot impute income arbitrarily.
- Courts will impute income where a payor or recipient has voluntarily reduced their income without reasonable excuse — including quitting a high-paying job, retiring early, reducing hours, or turning down opportunities.
- Where a spouse controls a corporation, courts can look through the corporate structure and attribute retained earnings, shareholder benefits, or artificially suppressed salaries back to the individual’s income for support purposes.
- Courts do not impute fantasy incomes — the imputed figure must reflect what the spouse could reasonably earn given their education, skills, work history, age, health, and local job market conditions.
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New BC Imputed Support Income Onus Decision Tel: 604 602 9000
A recent BC Court of Appeal case of S.A. v. Z.R., 2026 BCCA 19 case set new law on who bears the onus of proving their underemployment is required by their need to raise children or for other health and educational needs.
[49]At the heart of the arguments advanced by the parties on appeal is a question that does not appear to have been directly addressed by this Court to date: which party has the burden to establish an evidentiary basis for a finding under s. 19(1)(a) of the Child Support Guidelines that a spouse’s under-employment or unemployment is required by the needs of a child of the marriage or by the spouse’s reasonable educational or health needs?
[50] There is no dispute that the party seeking to have income imputed to the other spouse based on intentional under-employment or unemployment has the burden of showing an evidentiary basis for such a finding: Marquez at para. 36. They also have the burden of showing that the amount they seek to impute is not arbitrary; rather, that there is a rational basis underlying the figure that is grounded in the evidence: Horbas v. Horbas, 2020 MBCA 34 at para. 39.
[51] The party seeking to impute income may discharge their burden to show intentional under-employment or unemployment through the financial disclosure of the other party. For example, a prima facie case for the imputation of income may be established where the evidence—regardless of who adduced it— shows that a party has made a voluntary employment decision that has led to a large drop in income: Peters v. Atchooay, 2022 ABCA 347 at para. 78; Horbas v. Horbas, 2020 MBCA 34 at para. 34. As a general rule, a parent with the capacity to earn a higher income cannot avoid child support obligations by a self-induced reduction of income: Hanson at para. 14, citing Julien D. Payne, Child Support in Canada, Danrab Inc., August 3, 1999.
[52] The contentious question on appeal is whether the evidentiary burden shifts to the party facing a claim for imputed income where they maintain that their unemployment or under-employment is required by one of the circumstances listed in s. 19(1)(a) of the Child Support Guidelines (“other than where the under-employment or unemployment is required by…”). The respondent contends that where a party seeks to bring themselves within one of the exceptions in s. 19(1)(a), they have the burden to show a basis in the evidence for the exception. The appellant maintains that the evidentiary burden is on the party seeking to impute income to establish both that a spouse is not working to capacity and that their unemployment or under-employment is not required by the needs of the children or their reasonable educational or health needs.
[53] There is strong support for the respondent’s position in appellate case law from other jurisdictions.
[54] In Drygala v. Pauli, 61 O.R. (3d) 711, 2002 CanLII 41868 (C.A.), the Ontario Court of Appeal addressed the imputation of income in the context of a spouse who chose to enrol in a full-time university program. The Court held, consistent with the law in British Columbia, that a specific intent to avoid child support obligations was not required before income could be imputed under s. 19(1)(a) of the Child Support Guidelines. The Court noted that in this case the spouse was intentionally unemployed within the meaning of s. 19(1)(a) when he chose to enrol in a full-time educational program rather than work. The question then became whether his unemployment was required by his “reasonable educational needs”. On this point, the Court reasoned:
[38] There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.
[Emphasis added.]
[55] The Manitoba Court of Appeal adopted the same approach in Horbas. In this case, the husband worked in the pipeline industry during the marriage, earning a steadily increasing income in jobs that required him to work outside of Manitoba. After separation, the husband changed employment so that he could remain at home and be available to his children. His income dropped dramatically. The Court found that this was sufficient to establish a prima facie case for the imputation of income:
[34] One of the striking aspects of this case is the lack of evidence by the husband regarding his income-earning situation. Indeed, once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case for imputation of income (established here by the sheer drop in income), the onus shifts to the individual seeking to defend the income position he or she is taking (see Payne at page 175). …
[Emphasis added.]
[56] To similar effect, see: Peters at para. 92; Pellegrini v. Tkach, 2023 SKCA 85 at para. 44; and Payne, Canadian Family Law at 98.
[57] While this Court has not directly addressed the onus point to date, the holding in cases such as Drygala is consistent with the general principles that govern the imputation of income that have been accepted in this jurisdiction. In Barker, for example, this Court commented on the imputation of income for unemployment and under-employment in these terms:
[18] Under s. 19(1)(a) of the Guidelines, the important question is whether the payor spouse has demonstrated an intention to be underemployed, with the consequence that his children do not benefit from his potential earning capacity. This does not mean a parent must work the long hours Ms. Barker puts in to earn her significant income. It does mean that a parent who chooses to work less than a regular work week must justify that choice by the needs of the children or suffer the loss personally. He cannot effectively transfer part of the cost of that choice to his children. Those principles are evident in the language of the provision…
[Emphasis added.]
[58] Finally, I note that Drygala has been applied in several decisions of the Supreme Court of British Columbia in support of the proposition that the evidentiary burden shifts once the party seeking to impute income has established under-employment or unemployment. See for example: McNaught v. Friedman, 2011 BCSC 524 at para. 88; D.E.A. v. A.L.B., 2024 BCSC 161 at para. 26; Bishop v. Wang, 2018 BCSC 781 at para. 125.
[59] This approach to the evidentiary burden is consistent with the text, context and purpose of s. 19(1)(a) of the Child Support Guidelines. The words “other than where…” suggest an exception to the imputation of income for under-employment or unemployment in certain circumstances. Once it is established that a spouse has voluntarily chosen to work at less than their full capacity, it falls on them to “justify that choice”—to use the language of Barker at para. 18. A shifting evidentiary burden is consistent not only with the language of s. 19(1)(a), but also with the principles that inform the imputation of income. These principles include the primacy accorded to a parent’s obligation to support their child, which takes precedence over the parent’s personal interests and choices. Finally, imposing an evidentiary burden on the spouse attempting to justify their unemployment or under-employment is fair given that they are best positioned to provide information about the impact of child, education, and health-related demands on their work capacity: Drygala at para. 41.
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In closing the BC Court of Appeal found that decisions across Canada on the evidentiary onus should be followed here in British Columbia.
[60] Accordingly, I conclude that British Columbia should follow the path taken in other jurisdictions in Canada and recognize that once a party establishes that a spouse is intentionally under-employed or unemployed, the evidentiary burden shifts to that spouse to demonstrate that the under-employment or unemployment is required by one of the circumstances listed in s. 19(1)(a) of the Child Support Guidelines.
