Farris Partner Todd Bell, and Associate Meghan Sahlstrom, were recently counsel to the successful respondent in a precedent setting family law matter at the BC Court of Appeal. In this case, although originally from Vancouver, for years the family lived and worked in Europe. They returned to Vancouver in 2006-2007, and separated in 2019. The appellant husband experienced a significant drop in income after the parties separated, and at the time of trial was working in Vancouver in a contract position. The wife sought to have the Court impute income to the husband based on his prior pattern of earnings.

Section 19(1)(a) of the Child Support Guidelines provides an exception to the general practice of imputing income to a spouse who is intentionally underemployed or unemployed when it is required by the needs of a child of the marriage or by the spouse’s reasonable educational or health needs.

On appeal, the husband alleged (among other things) that the trial judge erred in imputing income to him without a proper evidentiary basis. In deciding the matter, the Court had to address a question that had not yet been considered by the BCCA: which party has the burden to establish an evidentiary basis for a finding under s. 19(1)(a) of the Child Support Guidelines? While 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, the contentious question on appeal was whether the evidentiary burden shifts to the party facing a claim where they maintain that their unemployment or under-employment is required by one of the circumstances listed in s. 19(1)(a). Here the respondent wife argued that the burden lay with the party seeking to bring themselves within the exception.

Looking to appellate case law from other jurisdictions, the Court found strong support for the wife’s position and concluded that BC should follow the path taken in other Canadian jurisdictions 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). It held that shifting the 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, including the primacy accorded to a parent’s obligation to support their child, which takes precedence over the parent’s personal interests and choices. The evidentiary burden finding changes a prior test that had been in place in British Columbia for over 30 years.

Todd Bell is an experienced family law litigator and trial lawyer. He practices parenting and custody litigation, assists parties seeking emergency protection from family violence and divides high net-worth assets such as corporate interests, trusts, foreign property, and pensions.

Meghan Sahlstrom advises clients on all family law matters such as separation, divorce, property division, common law trusts, corporate restructuring, spousal support, child support, guardianship, relocation, and parenting time. She also has experience representing parents in child protection matters.