What is the effect of imputed income on a spousal and child support order?

The defendant refers to Pelley v. Pelley (1995), B.C.J. No. 1232, wherein Hinds, J.A. writing for our Court of Appeal, considered the effect of a spousal and child support order which was based on income which was imputed to an appellant in an amount considerable higher than was available to that appellant.

As in the present circumstances, the appellant in Pelley v. Pelley failed to file a Property and Financial Statement, and he failed to contest the claim for maintenance that was made. In these proceedings, in an order made April 9, 1990, the court ordered that the defendant provide counsel for the plaintiff with financial documentation, including an itemized statement of revenue and expenses. He did not do that. It was in those circumstances that the order of May 18, 1990, was pronounced.

At paragraphs 20 and 24 of Pelley v. Pelley, Hinds J.A. wrote this: There is no question that the appellant’s income at the time of the variation proceeding was significantly less than the income, which must have been attributed to him at the time the original order was made. The effective reduction in his income from that originally imputed to him must be seen as material. That being so, the chambers judge should have embarked on an analysis of what variation in maintenance was justified as a result of the change in circumstances. In my view, he erred in failing to do so. In my view the degree of variation of maintenance to be paid by the appellant, and the cancellation or reduction of the arrears of maintenance, must be based on a realistic assessment of the circumstances of the appellant, the respondent, and their three children.