Your Top* Vancouver Support Reduction Lawyers apply for and defend against applications to vary and reduce Vancouver, BC and Calgary spousal or child support Orders. In today’s blog, Tal Wolf, top Vancouver Support Reduction Lawyers (from Google Reviews), explains what must be proven to reduce prior court ordered spousal and child support awards.
THE FIX FOR IMPUTED INCOME: GET A JOB!
You may already be aware of the concept that a spouse can’t just quit their corner-office 6-figure job in order to pay less support after a divorce. Nor can the other spouse spend the rest of their life sitting on the couch watching TV (and receiving support payments) while not earning a dime. In both of these scenarios, the spouse would be in for a rude awakening when the Court imputes income for support purposes. Of course inequities are taken into account, but nobody is supposed to get a free ride. There is accountability in a divorce, and income imputation is one method for achieving it. No matter which side of the support equation you are on, the BC CHILD SUPPORT AND SPOUSAL SUPPORT LAWYERS AT MACLEAN LAW will make sure the Court gets it right. Vancouver Support Reduction Lawyers know what the test is and how to properly frame the evidence and create winning arguments.
Our law firm has been repeatedly awarded “Best* Vancouver Family Law Firm” and you can meet with us in Vancouver, Calgary, Kelowna, Surrey, Richmond and Fort St John, BC. Call us across North America toll free at 1-877-602-9900.
Top* Vancouver Support Reduction Lawyers
Our Top* Vancouver Support Reduction Lawyers explain another concept you may be aware of is the “change in circumstances” requirement for having a previous support order modified. In essence, once a support obligation is determined, neither the payor nor the recipient can apply to change it just because he or she feels that enough time has passed. Rather, a material (fancy word for big) change must be shown as to the facts of your lives that the judge took into account the first time. That is, the change must be of the kind that, if known by the judge when the last order was made, would have resulted in a different order. The change must be significant and long lasting. Consult with our Top* Vancouver Support Reduction Lawyers to find out if you or your ex-partner meets the test.
The Test Explained By Vancouver Support Reduction Lawyers
The onus of showing such a change in on the applicant: see L.M.P. v. L.S., 2011 SCC 64at para. 31. This onus was developed more thoroughly in Way v. Way, 2014 BCSC 1587, where Madam Justice Donegan summarized:
[24] A court is to proceed on the assumption that the order sought to be varied was correct: Oakley v. Oakley (1985), 48 R.F.L. (2d) 307 (B.C.C.A.) and Haigh v. Haigh (1997), 31 R.F.L. (4th) 435 (BCCA).
[25] A court should not lightly disturb the original order. The onus rests with the applicant to first show a material change in circumstances; that is, a change that if known at the time of the original order would likely have resulted in different terms. The applicant must not only show a material change in circumstances, but the conditions that call for court intervention: Walters v. Walters, 2011 BCCA 331at para. 48, citing Oakley at 313.
Tal Wolf, our Vancouver Support Reduction Lawyer, Provides Analysis
It is fairly well settled that when one side or the other gets a new job, a material change in circumstances has occurred that likely would justify reevaluation of support. The obvious and most common examples have been, for example, when the recipient who had no job when support was decided gets a job, or who had a low-paying job finds another one with a bigger paycheck. In this case, the payor will want to get back into court right away and say, “Hey, my ex is working now – I shouldn’t have to pay as much.” On the flip side, if it’s the payor who lands a better-paying job then they had before, their ex will immediately want to claim, “They’re making more now, so I should get paid more support!” Read our Vancouver Support Reduction Lawyers blog on post separation income increase to learn about the test applied in those cases.
New Decision Highlights Test as Well As Imputing Income On Suspicious Evidence
But the British Columbia Supreme Court recently highlighted a fascinating, and counter-intuitive variation on the above scenarios, where the payor’s new 6-figure job was actually used as a basis for reduced support! Alarcon v. Surco, 2017 BCSC 5 dealt with the claimant’s application to reduce spousal and child support payments that had been ordered the previous year, based on his imputed income of $150,000. He had received just received an offer of employment in engineering support, where he was to earn $100,000 as a “base salary”. Mr. Justice Armstrong concluded:
36 Weatherill J. imputed income to the claimant at $60,000 per year up until January 1, 2016 in part because of his failure to disclose his income or his income potential, and in part because of his general lack of credibility. Weatherill J. imputed income at $150,000 per year after January 1, 2016 “to ensure the claimant’s best efforts to obtain employment commensurate with his education, training and experience.”
37 I am not certain why the court imputed that level of income to ensure the claimant made his “best efforts to obtain employment commensurate with his skill and training”. Nevertheless, the claimant was given right to apply to vary the order after January 1, 2016 “should there be a change in circumstances”. The claimant argues that his inability to obtain employment at an income of $150,000 per annum constitutes a material change in circumstances because his current support obligations should be based on his current income of $100,000 which he has achieved in his new position.
38 I accept that when the claimant obtained employment with an income of $100,000 per year, that change constituted a “change in circumstances” from those contemplated by Weatherill J. such that the claimant’s support obligations should be revisited.
39 I also accept that the change in the claimant’s financial circumstances will be long lasting and warrants a variation to his support obligations.
40 The next question is whether I can rely on the claimant’s evidence to the effect that his annual income is only $100,000 per year. The claimant did not tender direct evidence from his employer and could not explain why this amount was termed as “base salary” in his offer of employment. When questioned about the possibility that his employer’s mention of a base salary was intended to reflect an opportunity for him to earn commission income from his expanding sales role, he said that $100,000 per annum was all he expected. At the same time though, he holds the view that his $100,000 salary is less than what he should be paid for the work he was employed to do and believes his employer should revisit his salary.
49 Based on the fact that the claimant received unreported income in 2015 and has business interests, including an apartment used by his father, in Peru I am satisfied on the balance of probabilities he has a greater income and capacity to pay support than is disclosed in this application. Bearing in mind the uncertainty regarding the claimant’s employer’s commitment to a $100,000″ base salary”, his failure to disclose his additional 2015 income, and the instances where Weatherill J. found the claimant to be lacking in credibility, I find it difficult to rely on the claimant’s assertions that his only annual income is $100,000.
50 For these reasons, I impute income to the claimant in the sum of $110,000 per year. Because I am skeptical of his assertions concerning his income, I intend to make an order that will require him to make retroactive support payments in the event that there is a discrepancy between this imputed income of $110,000 and his actual income.
51 The claimant’s monthly support payments will be based on this imputed income . . . .
Vancouver Support Reduction Lawyers At MacLean Law Will Develop A Winning Strategy
The Alarcon case shows that if you’re paying support because the court thought you should have been working within a certain earning capacity, getting a good job sometimes can pay off in more ways than one: if your real income turns out to be lower than what the court had assigned to you, you would want to head straight back to the judge and ask for your monthly payments to be lowered. THE BC SUPPORT REDUCTION LAWYERS AT MACLEAN LAW will help you navigate this process and make sure every angle is covered when you go in for a re-evaulation. We also will stand aggressively in your corner when your spouse, no doubt, fights tooth and nail to defend the support that they have grown accustomed to receiving.
