Background
S.P. and C.P. separated after a 16-year marriage and have three children. During the marriage, C.P. was a stay-at-home parent; after separation, she trained and worked as a hairstylist. Earlier support orders required annual income reviews, and in 2020 the trial judge found C.P. intentionally under-employed but, because of the COVID-19 pandemic, imputed income below full-time minimum wage.
In cross-applications filed in 2024, S.P. sought an updated imputed income for C.P. and a contempt sanction for interference with parenting time. The Supreme Court of British Columbia found C.P. capable of full-time work and intentionally under-employed, rejected her medical evidence, and imputed annual income of $36,000 based on full-time minimum wage. It also found that C.P. had wrongfully denied parenting time by facilitating the eldest child’s attendance at Bible camp during S.P.’s parenting time, imposed a $1,000 fine, but declined to find contempt.
The Court’s Holding
The Court of Appeal allowed the appeal concerning imputed income. The chambers judge failed to assess what C.P. was reasonably capable of earning in light of her training, experience, work history, health, and available employment. He also incorrectly left the burden on S.P. after she established a prima facie case of intentional under-employment, rather than requiring C.P. to provide probative evidence of what she could reasonably earn working full-time.
The Court conducted its own assessment instead of ordering a new hearing. Relying on C.P.’s experience, her 2023 earnings from working two days per week, her capacity for full-time work, and uncontradicted evidence about local hairstylist positions and salaries, it replaced the $36,000 figure with an imputed annual income of $58,000.
The Court dismissed the contempt portion of the appeal. The judge reasonably exercised discretion and appropriately considered the eldest child’s near-adult age, autonomy, deteriorating relationship with S.P., and the requirement that contempt be used cautiously and as a last resort.
Key Takeaways
- Imputed income for intentional under-employment must reflect a reasoned assessment of the spouse’s actual earning capacity, not an unsupported default to minimum wage.
- Once a prima facie case of intentional under-employment is established, the spouse opposing imputation must provide evidence justifying the under-employment and addressing reasonable earning capacity.
- A deliberate breach of a parenting order does not automatically require a contempt finding; courts retain discretion to use a more measured remedy when the circumstances make contempt inappropriate.
Why It Matters
The decision clarifies the evidentiary burdens governing intentional under-employment under s. 19(1)(a) of the Federal Child Support Guidelines. A spouse cannot avoid a realistic income assessment by withholding evidence uniquely within that spouse’s knowledge, particularly when the other party presents objective, uncontradicted labour-market evidence.
It also reinforces the restrained approach to civil contempt in family proceedings. Even where a parent deliberately breaches a parenting order, the court must consider the child’s age, autonomy, family dynamics, and whether a lesser remedy adequately addresses the misconduct.