Vancouver Lump Sum Imputed Income Lawyers deal with issues related to monthly periodic as well as lump sum support. In both of these types of support calculations, experienced Vancouver Lump Sum Imputed Income Lawyers know that plugging in the correct income for both the paying and receiving spouse is crucial to avoid mistakes.
The best Vancouver Lump Sum Imputed Income Lawyers know that in some cases people are not working to their capacity so the court will estimate what they could really earn to do justice in child and spousal support cases. Our Vancouver Lump Sum Imputed Income Lawyers also know that in other cases using correct income for past years and a realistic future income for some types of support calculations is equally important. MacLean Family Law has offices in Vancouver, Calgary, Kelowna, Surrey, Fort St John and Dawson Creek.
Vancouver Lump Sum Imputed Income Lawyers
In today’s blog Lorne N MacLean, QC updates us on a recent high net worth income earner case where the BC Court of Appeal partly allowed an appeal by a husband who argued his current income was improperly used for calculation of RETROACTIVE spousal support and LUMP SUM support for the future. Additionally, the Court of Appeal dealt with the issue of SPOUSAL SELF SUFFICIENCY and whether income should have been IMPUTED to the unemployed wife.
In Hsieh v. Lui the BC Court of Appeal decided:
[47] Further, I see no error in the judge’s decision not to impute income to Ms. Lui for the period during which spousal support is payable. A spouse is not obliged to become self-sufficient following a marriage breakdown; rather, a spouse is obliged to make reasonable efforts to achieve self-sufficiency. If such efforts are not made, a judge may reduce the amount of spousal support awarded by imputing income to the unreasonably under-employed spouse: Rogers v. Rogers, 1999 BCCA 238 at paras. 44-47, citing Moge v. Moge, [1992] 3 S.C.R. 813. A decision on whether to impute income is highly discretionary and, as such, entitled to considerable appellate deference: Marquez v. Zapiola, 2013 BCCA 433 at para. 36.
[48] When a judge decides whether to impute income, the spouse’s capacity to earn income given his or her age, education, health, work history, work availability and retraining prospects should be considered. The test for imputing income for intentional under-employment or unemployment is one of reasonableness, having regard to these factors: Marquez at para. 37. The judge undertook the necessary exercise, and fully reviewed Ms. Lui’s background and circumstances. She decided not to impute income to Ms. Lui largely because she had been out of the workforce for 17 years and primarily responsible for child care since Olivia’s birth (para. 142). Her primary caregiving responsibilities are ongoing. In these circumstances, I see no basis upon which the judge’s discretionary decision not to impute income to Ms. Lui should be disturbed.
Vancouver Lump Sum Imputed Income Lawyers And Correct Income For Retroactive Support
[49] However, in my view the judge did err in awarding retroactive spousal support based on Mr. Hsieh’s current annual income. Insofar as possible, retroactive support is to be determined based on actual income earned in each year for which it is due: Tedham v. Tedham, 2003 BCCA 600 at paras. 58, 71; Cornelissen v. Cornelissen, 2003 BCCA 666 at paras. 35-42. Although I do not accept that the judge erred in awarding spousal support for the pre-trial period, given that entitlement was compensatory and the parties’ post-separation incomes differed significantly, I agree that she calculated the retroactive portion of the spousal support award on an erroneous basis.
[50] As previously noted, the judge made findings as to Mr. Hsieh’s Guidelines income in each year following the parties’ 2010 separation (para. 132). She also described the $1,175,787 award as “an order for retroactive and lump sum spousal support” (para. 150). However, she relied on SSAG calculations provided by Ms. Lui which produced the mid-range $1,175,787 figure awarded based on attributing income of $647,000 to Mr. Hsieh and income of $36,000 to Ms. Lui for the entire 10.5-year duration period (the midpoint for a 14-year marriage). In other words, the judge based both the 4.5-year retroactive portion of the spousal support award and the remaining 6-year future portion on the parties’ current Guidelines incomes. In my view, this was clearly wrong.
[51] The parties asked the judge to make a lump sum award, and thus to hypothesize regarding their likely future incomes. Given that invitation and the evidence concerning Mr. Hsieh’s positive professional trajectory, it was reasonable for her to use the $647,000 figure to determine the future portion of the spousal support award, i.e., for the years 2015 to 2021 (paras. 134-135). However, it was unnecessary to hypothesize regarding past income and, as this Court held in Tedham, it was incumbent on the judge to award retroactive spousal support based on the parties’ actual incomes. Accordingly, in my view the retroactive portion of the spousal support award must be recalculated on this basis for each year from July 1, 2010 to 2014 and reduced to the cumulative extent of the difference.
