Ex-husband challenged judge’s determination of income for support purposes
The British Columbia Court of Appeal has dismissed an ex-husband’s appeal alleging errors in a trial judge’s determination of his income for support purposes and decision to set the imputed income as a baseline in future spousal support reviews.
In S.A. v. Z.R., 2026 BCCA 19, the parties started living together in a marriage-like relationship in 1998 and married in 1999. They had three children together and resided in Europe for many years.
During the marriage, the respondent wife acted as the children’s primary caregiver, while the appellant husband held well-paid jobs that required much travel. His 2018 and 2019 declared income was $540,603 and $481,943, respectively.
After the parties separated in February 2019, the ex-husband’s income significantly decreased. During the trial, he was working in Vancouver in a contractual position and had annual earnings of $204,000.
The ex-husband alleged that he could not obtain a higher income because of the limitations of Vancouver’s job market and his desire to reside in the city, where he could maintain his relationship with his children.
In August 2024, a trial judge of the Supreme Court of British Columbia issued a decision addressing parenting, support, and property division issues. She determined that the ex-husband was not working to capacity and that an imputed annual income of $325,000 would be realistic.
The imputed income considered the impacts of inflation and the ex-husband’s desire to stay in Vancouver. The amount was less than his pre-separation income and less than the ex-wife’s requested imputed income based on his pre-separation income.
The judge attributed the reduction in the ex-husband’s imputed income to his wish to spend more time with his children, who were having a difficult time since their parents’ separation.
Given the ex-husband’s work skills and prior earnings, the judge found that he failed to meet his evidentiary burden to show that his children’s needs required his reduced income level after resigning from his former role.
On appeal, the ex-husband argued that the judge erred in determining his income for support purposes by:
- imputing his income, without a proper evidentiary basis, by referring to his pre-separation earnings, which were unattainable in Vancouver, where his post-separation parental responsibilities required him to reside
- setting the imputed income as the baseline in future spousal support reviews
Regarding child support, the ex-husband asserted an error in the judge’s exclusion of post-secondary costs from special and extraordinary expenses under s. 7 of the Federal Child Support Guidelines, SOR/97-175, to be allocated between the parties.
Imputed income affirmed
The Court of Appeal for British Columbia dismissed the appeal. First, the appeal court saw no error in the trial judge’s exercise of her discretion in imputing income to the ex-husband.
According to the appeal court, as in other Canadian jurisdictions, BC should recognize that, once a party has proven a spouse’s intentional underemployment or unemployment, the evidentiary burden shifts to that spouse to show that one of the circumstances in s. 19(1)(a) of the Child Support Guidelines required the underemployment or unemployment.
Given the ex-husband’s employment experience, income history, value and skills as an employee, and previously flexible employment arrangements, the appeal court found the judge entitled to reject the claim that he was working to capacity.
The appeal court saw no palpable and overriding error in the judge’s finding that the ex-husband could obtain more lucrative employment even if he wanted to limit travel. On the other hand, the appeal court found rational support for the judge’s exercise of discretion based on the evidence.
Second, the appeal court held that the judge did not commit an error in making the ex-husband’s imputed income the baseline in future spousal support reviews and settling the final order on that basis, consistently with the judge’s reasons.
Third, the appeal court saw no error in the judge’s exercise of her discretion to exclude post-secondary education costs from the s. 7 expenses, in light of the trial evidence.
