Spousal Support Advisory Guidelines, section 6.1:
The starting point for the determination of income under the Spousal Support Advisory Guidelines is the definition of income under the Federal Child Support Guidelines.
The Federal Child Support Guidelines provide an expansive definition of “income” for child support purposes, one that reflects and clarifies much of the pre-Guidelines law on income determination. Sections 15 to 20 of the Child Support Guidelines, along with Schedule III, create a framework for income determination. Prior to the release of the Spousal Support Advisory Guidelines, most courts used the same definition of income for both child support and spousal support purposes and that practice has continued since January 2005.
The Child Support Guidelines use a “gross” income measure, income before taxes and other deductions. This same gross income provides the basis for the calculations under all the formulas found in the Spousal Support Advisory Guidelines.
Some of the technicalities of Schedule III are sometimes forgotten in spousal cases. The income imputing provisions of section 19 are, if anything, even more important than in child support cases. In every spousal support case, two incomes are in issue. Income may need to be imputed to a payor spouse, but in addition a spousal support case may also require that an income be imputed to the recipient spouse, because of self-sufficiency issues. In these cases, income is imputed to the recipient under s. 19(1)(a), for under/unemployment.1
Child Support Guidelines, section 15 to 16:
Determination of annual income
- 15 (1) Subject to subsection (2), a spouse’s annual income is determined by the court in accordance with sections 16 to 20.
- (2) Where both spouses agree in writing on the annual income of a spouse, the court may consider that amount to be the spouse’s income for the purposes of these Guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21.
Calculation of annual income
16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.
In Remmem v. Remmem, 2014 BCSC 1552, the court found that Mr. Remmem’s interest in a fishing license was excluded property however for the purposes of calculating Mr. Remmem’s income for the calculation of spousal maintenance the court did not consider excluding the income Mr. Remmem was receiving from the excluded property. The court used all of Mr. Remmem’s income that was available to him to calculate the appropriate amount of spousal maintenance.
1Spousal Support Advisory Guidelines, Section 6.1, http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/spag/p6.html#a61