It’s tough to get a reduction in child support or spousal support under the Divorce Act or the Family Law Act. Basic child support for a minor, in particular, is calculated using the Federal Child Support Guidelines and is mostly inflexible. Spousal support, calculated under the Spousal Support Advisory Guidelines, or SSAG, is usually more flexible.
A number of workers, particularly in the resource sector in BC, fly in and out of various locations such as work camps or nearby towns, places like Fort St. John or Fort McMurray, to work. They can earn a significant income, but there is a high cost of travelling back and forth between home and where they may work.
Gartman v. Hancheroff, 2015 BCSC 160 was a case involving a computer software engineer who lived in Nanaimo but worked for a start-up in Las Vegas. While not deductible for child support, the engineer’s travel costs which were not reimbursed from his employer were a reason to reduce his spousal support from the typical mid-range result to the low-end, as part of the assessment of needs and means.
In the same decision, as a side note, the judge found that the software engineer was not underemployed, even though his salary dropped from $180,000 to $120,000 (he was earning approximately $140,000 total). He noted, specifically:
 I find, specifically, that the respondent is fully engaged in a job which is well-suited to his training and skills. He is not under-employed. He is not shirking. He is earning a good income which will provide adequately for his ex-spouse and children. I have no difficulty accepting the respondent’s evidence, moreover, that he is earning more in Las Vegas than he would in Nanaimo. If he relocated permanently to Nanaimo, something which he might choose to do at any time and no one could properly object, he would almost certainly be less advantageously employed and there would be less money available for support. Instead, the respondent has struck a balance. He has made sensible working arrangements by which he maximizes his income while serving the best interests of the children. He does this not only by providing for them financially, but by seeing them as often as possible and bonding with them successfully. There is nothing unreasonable about any of this and I decline to impute additional income to him as a result.
As a side note, in Greene v. Greene, 2010 BCCA 595, high access costs (where a payor parent was a lower mainland longshoreman exercising parenting time in Vernon) were indicated to be a reason to reduce a property award or spousal support, but not a good reason to reduce child support, though the court acknowledged that there were a few sections which might conceivably allow this, they were not plead and it left those for another day.
If you are facing a spousal support related issue or any other family law situation, contact one of our Family Law lawyers.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
This article was written by a lawyer formerly with Lindsay Kenney LLP.