Young v. Young

2026 BCCA 195 Young v. Young COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Young v. Young, 2026 BCCA 195 Date: 20260417 Docket: CA51110 Between: Kevin Wayne Young Appellant (Respondent) And Janelle Patricia Young Respondent (Claimant) Before: The Honourable Madam Justice Fenlon The Honourable Justice Fleming The Honourable Justice Gomery On appeal from: An order of the Supreme Court of British Columbia, dated October 6, 2025 (Young v. Young, Nanaimo Docket E90895). Oral Reasons for Judgment The Appellant, appearing in person (via videoconference): K.W. Young The Respondent, appearing in person (via videoconference): J.P. Young Place and Date of Hearing: Vancouver, British Columbia April 17, 2026 Place and Date of Judgment: Vancouver, British Columbia April 17, 2026 Summary: Following their divorce in 2021, the parties filed a consent order requiring the appellant to pay spousal support indefinitely based on his income from the previous year. In 2023, the appellant moved to Ecuador where he now earns a modest annual income of $3,000. A chambers judge found that the appellant was intentionally underemployed and imputed income to him of $70,000. The appellant challenges that decision, arguing primarily that the judge failed to take into account his actual earning capacity in Canada. In support of this argument, the appellant seeks to adduce fresh evidence showing his income declined after the pandemic. Held: Application to adduce fresh evidence denied and appeal dismissed. The judge did not err in imputing an income of $70,000. The new evidence was available at the time of the hearing below. Further, the new evidence could not reasonably have affected the result. The judge took into consideration the appellant's reduced income after the pandemic and was satisfied that the appellant had the capacity to earn between $60,000 and $80,000 annually. [1] FENLON J.A.: This appeal challenges a chambers judge's decision to impute income to the appellant, Kevin Young, and to increase the amount of support he is required to pay to the respondent, Janelle Young. Background [2] The parties separated in the fall of 2019 after 22 years of marriage. They have two adult children. The marriage was a traditional one in which Ms. Young left the workforce to care for the parties' home and children while Mr. Young supported the family, eventually through running a successful commercial floor cleaning business. [3] The parties were divorced in March 2021. They filed a consent order requiring Mr. Young to pay spousal support of $1,070 per month until June 1, 2022, based on income of $80,000 per year. After that date, the parties were to exchange tax information annually and adjust spousal support to reflect their preceding year's income, using the mid-range of the Spousal Support Advisory Guidelines [SSAG]. Spousal support was to continue "indefinitely, or until further Order of the Court" (the "Support Order"). [4] In January 2023, Mr. Young moved to Ecuador. He has since remarried and he and his wife have chosen to live a simple life there. Mr. Young earns a modest income of $3,000 a year teaching English part time. He spends most of his time doing unpaid missionary work. [5] In keeping with the terms of the Support Order, Mr. Young recalculated his support payment each year based on what he earned in Ecuador. In 2023, he paid Ms. Young $167 per month. In 2024, he paid $368 per month until June 30, 2024, at which point he stopped paying altogether, being of the view--which he later came to realize was incorrect--that since Ms. Young had returned to work and was earning more than he was, she should be paying him support. Ms. Young agreed there was some ambiguity in the wording of the Support Order in this regard. The hearing below [6] On September 3, 2025, Ms. Young applied under s. 17(4.1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) to vary the Support Order on the basis that Mr. Young's move to Ecuador and his subsequent reduction in income amounted to a material change in circumstances. She sought to have income imputed to him in accordance with s. 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175, which provides: The court may impute income to a spouse [where] the spouse is intentionally under‑employed or unemployed, other than where the under‑employment or unemployment is required by the needs of a child or by the reasonable educational or health needs of the spouse. [7] At the hearing, Ms. Young proposed imputing income of $80,000 to Mr. Young--the sum he was earning at the time of their divorce. She proposed calculating support using $50,000 for her, because she had recently qualified as a care-aid and anticipated being fully employed in that capacity in future. Ms. Young also proposed using the high end of the SSAG range, rather than the mid-range specified in the Support Order, and ending support after another ten years. [8] Mr. Young's position was that the Support Order should not be varied, and that support should be based on his actual income. On that basis, he would be required to pay Ms. Young $167 per month. He pointed out that the parties had been operating on that basis since 2022, and that Ms. Young had accepted his calculations. However, on being told by the judge that he was going to impute income, Mr. Young proposed an imputation of $55,000 based on his 2022 notice of assessment. [9] The judge was satisfied that Mr. Young was capable of earning in the range of $60,000-$80,000 per year. He determined that income of $70,000 should be imputed to Mr. Young for 2025 and years following. [10] Turning to retroactive support from July 1 through December 31, 2024, the judge was inclined initially to order support of $1,070 per month. Mr. Young pointed out that this figure was based on his pre-pandemic, pre-divorce earnings and should not be used for 2024. At that point, Ms. Young said she would accept $368 per month for 2024, which the judge described as "more than fair". He accordingly made the following orders: 1. For the period of July 1, 2024 to December 1, 2024 inclusive, Kevin Wayne Young is obliged to pay spousal support to Janelle Patricia Young in the amount of $368.00 per month. 2. Commencing January 1, 2025 and continuing on the first day of every month thereafter, for an indefinite period, Kevin Wayne Young is to pay to Janelle Patricia Young spousal support in the amount of $642 per month. 3. The income of Kevin Wayne Young is imputed at $70,000 per year and the income of Janelle Patricia Young is imputed at $50,000 per year. The calculation is for a mid range spousal support. 4. The signatures of the parties are dispensed with. On appeal [11] Mr. Young contends the judge made five errors which I would reframe slightly as follows: 1. The judge erred in imputing income to Mr. Young by failing to: (a) determine whether any underemployment was intentional or reasonable; (b) consider Mr. Young's present earning capacity; and (c) grapple with evidence that Mr. Young's employment income had declined to $55,850 before he moved to Ecuador. 2. The judge erred by failing to address the Divorce Act spousal support objectives of transition and self-sufficiency, failing to consider the number of years since the parties divorced and Ms. Young's current capacity to earn income; and 3. The judge denied him procedural fairness by promising him an opportunity to make submissions after a break, but then immediately delivering reasons when the proceedings reconvened. Analysis 1. Errors in imputation of income (a) Failure to determine if underemployment was intentional or reasonable [12] The test for imputing income for intentional under-employment is reasonableness. A spouse's capacity to earn income is assessed in light of their age, education, health, work history and work availability: Marquez v. Zapiola, 2013 BCCA 433 at paras. 36-37. Mr. Young says the judge failed to take the requisite step of determining whether his present earning capacity was intentional or otherwise reasonable. [13] In assessing this ground of appeal, I begin by observing that the judgment as transcribed covers only the delivery of the terms of the order. The judge's reasons and findings are expressed in exchanges with the parties during the hearing. The transcript of the hearing is clear: the judge found that Mr. Young was intentionally underemployed, having elected to move from Calgary to Ecuador to do unpaid missionary work--a decision that was not reasonable given Mr. Young's obligations to Ms. Young. For example, at one point the judge said: THE COURT: Now, let's talk about what you're doing now. I've read -- I've read your materials. I'm aware in a general way what you're up to down in Ecuador, what I -- how you're -- how you occupy yourself down in Ecuador. I gather you're doing missionary work and you're also teaching part time; is that right? KEVIN YOUNG: That's correct, yes. THE COURT: Okay. And the result -- the upshot of it is that you're presently making only something like $3,000 a year; is that right? KEVIN YOUNG: That's what I expect to earn this year, yes. THE COURT: Okay. So the argument here as a matter of law is that in the face of this ongoing obligation to pay spousal support, and it's -- it -- the nature of this spousal support order is compensatory. In other words, you're paying your wife -- your ex-wife's support on the footing that she made sacrifices during your married life. She wasn't part of the work force, she didn't gain skills and contacts and all those sort of things. So you're paying compensation because of the economic prejudice that's been caused to her by the breakdown of your marriage. All right? That's an ongoing obligation which cannot be evaded by making personal decisions which very strictly limit your income. I would say that moving to Ecuador to do missionary work, when in actual fact you're perfectly capable of making far more money than that, it's not -- it's not something that works. I don't know what your interpretation of Miglin is or might be, but I'm talking about a compensatory order, an ongoing obligation to pay in circumstances where you've made personal decisions in your life that limit your income to $3,000 when this court has already ordered and you've already consented to an order that you have an ongoing indefinite obligation to pay Ms. Young support. [Emphasis added.] [14] At another point in the hearing, the judge said he was going to impute income to Mr. Young because it was not open to him to move out of the country "and earn a pittance and thereby escape [his] obligations to pay support to [his] ex-spouse of 22 years and the mother of [his] two children". In my view, it cannot be said that the judge did not consider whether Mr. Young was intentionally underemployed. To the contrary, he found that he was. The question then became, what was he reasonably capable of earning? (b) Failure to consider current earning capacity [15] Although not pressed at the hearing, in his written argument Mr. Young contends the judge failed to consider his present earning capacity in Ecuador, where he is able to earn only $6.00 US per hour teaching English part time. He says the judge erred in principle by treating current earnings as irrelevant because they were "not a proper wage" rather than making findings grounded in the record of what Mr. Young could reasonably earn in light of his actual circumstances and opportunities. [16] I see no error in the judge's reasoning on this point. The judge fully appreciated Mr. Young's circumstances in Ecuador. It was Mr. Young's limited earning capacity in Ecuador, compared with what he could earn had he stayed in Calgary, that grounded the imputation of income. In this regard, the judge said: It is simply not open to you to make lifestyle decisions that result in such a rigidly circumscribed and tiny income earning position. I'm going to do as I said [17] Put another way, once a court finds that a payor is intentionally underemployed, the payor's current income is not determinative. Rather, as I have already noted, the court imputes income based on what the payor could reasonably earn in light of his age, education, health, work history and work availability. [18] I appreciate that Mr. Young feels called to work as a missionary in Ecuador, something that has been his ambition since early adulthood. But that decision was entirely a matter of personal preference. Although the court cannot prevent Mr. Young from making the lifestyle choice he did, it can and must hold him to his legal obligation to support his former spouse based on the income he could be earning had he remained in this country. (c) Failure to grapple with reduced income prior to move to Ecuador [19] Mr. Young's primary ground of appeal rests on what he says was the judge's failure to grapple with evidence showing that his income and work opportunities in Canada had changed post-pandemic, due in part to the loss of significant contracts. He points to his last full year of employment before moving to Ecuador in January 2023: his 2022 notice of assessment shows income of $55,850--significantly less than the $70,000 imputed to him. [20] In support of this argument, Mr. Young applies to have us accept new evidence on appeal to show that $70,000 is not a realistic assessment of his capacity to earn income. The evidence consists of documents related to: (a) The sale of his business in December 2022; (b) Financial statements showing a decline in business income from 2018 to 2022; (c) Labour market evidence for typical employees in custodial and cleaning work; and (d) Communications between the parties demonstrating their calculation of support payments based on actual income from July 2022 to June 2024. [21] Fresh evidence will only be admitted on appeal if it meets the four criteria in Palmer v. The Queen, [1980] 1 S.C.R. 759, 1979 CanLII: (a) The evidence could not, by the exercise of due diligence, have been obtained at the hearing below; (b) The evidence is relevant to a decisive or potentially decisive issue; (c) The evidence is reasonably capable of belief; and (d) If believed, the evidence could reasonably be expected to have affected the result. [22] In my view, the new evidence does not meet the first and fourth criteria. As to the first criterion, Mr. Young submits that, as a self-represented litigant, he did not realize he would be required to provide such granular evidence to prove his earnings. He also says he had challenges responding to the application from Ecuador, and spent much of the 30-day notice period trying to retain a lawyer. However, the issue of Mr. Young's previous earnings was squarely raised by Ms. Young in the notice of application. As Ms. Young pointed out, there are many resources available online to help self-represented litigants. Further, it was open to Mr. Young to request an adjournment if he needed more time to respond to Ms. Young's application, but he did not do so. In short, the new evidence could have been put before the chambers judge if Mr. Young had acted with diligence. [23] In any event, the new evidence could not reasonably have affected the result, even if it had been before the court. The judge accepted Mr. Young's assertion that his company's earnings decreased during the COVID-19 pandemic. There was no dispute about what he earned in 2022. Government data about average earnings for entry-level workers and supervisors in the cleaning field are not a good comparator for Mr. Young's work experience and earning potential as an experienced businessman who had run a successful company for many years. [24] For these reasons, I would not admit the new evidence. [25] Using the evidence that was before the judge, I turn now to Mr. Young's argument that the judge failed to grapple with Mr. Young's reduced income after 2019. In particular, Mr. Young refers to evidence that his business declined during the pandemic, such that by 2022 he earned only $55,850. He says that this is the key error in the judge's reasoning, which did not take into account what he could actually earn in Canada in the cleaning business. [26] Mr. Young's 2021 notice of assessment showed income of $69,269; his income for 2022 was $55,850. Mr. Young acknowledged that the Support Order was based on his 2019 income of $80,000. The judge was therefore satisfied that Mr. Young had the capacity to earn between $60,000 and $80,000 annually. [27] Mr. Young says that the judge paid too much attention to what he had earned in the past, and not enough to what he could actually earn now in Canada. He adds a new submission on appeal, stating that he continued to run the Nanaimo-based business from Calgary after the divorce but had not succeeded in rebuilding the client base to pre-pandemic levels. Mr. Young says that his plan had been to keep operating the business from Ecuador, but given the lack of earnings he decided to sell it instead. [28] Setting aside the fact that this is a new argument on appeal, it does not, in my view, alter the analysis. The judge was alive to a temporary reduction in company earnings due to the pandemic, and noted that Mr. Young had received government support during that period. As for Mr. Young's reduced income in 2022, the judge had evidence before him that Mr. Young spent two months in Ecuador during that year, and completed the sale of his business in December. There was no evidence of efforts to "grow the business" either in Nanaimo or in Calgary. It was evident, then, that Mr. Young did not work a full 12 months in 2022, and that he had been engaged during at least part of that year in the process of selling his business and planning his move to Ecuador. In my view, it cannot be said that the judge did not grapple with Mr. Young's actual earning potential and his income from 2020 to 2022. [29] In conclusion on the first ground of appeal relating to the imputation of income, I see no error in the judge's decision to impute income of $70,000 to Mr. Young. 2. Failure to address the objectives of spousal support [30] Mr. Young says the judge failed to analyze whether Ms. Young should continue to be entitled to spousal support given that she had retrained as a care aide and was capable of economic self-sufficiency. He notes that this is one of the considerations that must be taken into account in determining entitlement to support. [31] In my view, this argument can be addressed summarily. The Support Order determined that Ms. Young was entitled to spousal support for an indefinite period. Mr. Young did not file an application to vary those terms. It followed that entitlement and duration of support were not in issue at the hearing. The only application before the judge was the amount of support payable by Mr. Young, which turned on whether income should be imputed to him. Indeed, Mr. Young acknowledged this at the hearing, saying: I'm not asking that the order be changed, Your Honour. I'm -- as I said, I would like to keep the order. To impute an income that's relevant to our current capacities, the one year that I was paying Ms. Young was $167 per month, and so she was content with that. [32] Today, Mr. Young also acknowledges that he is bound by the order to pay support. 3. Procedural fairness [33] I turn finally to Mr. Young's contention that he was denied procedural fairness because the judge told him he could address key points "after the break". The court then stood down to calculate spousal support numbers, and when proceedings reconvened, the judge moved immediately to giving his decision. [34] This ground of appeal--which was not pressed at the hearing before us and, as Mr. Young noted, was not his main ground of appeal--can be addressed summarily, because it is based on a misunderstanding about what was to be addressed after the break. It is evident that the judge intended to give Mr. Young an opportunity to respond to the question of whether retroactive support for 2024 should be set at $1,070. However, after stating that he would provide such an opportunity after the break, Ms. Young agreed to accept $368 per month for 2024, which, as the judge observed, was "more than fair" to Mr. Young, making it unnecessary for Mr. Young to address the question of the $1,070 level of support. [35] I will address here the submission made at the hearing today that the judge's focus on the inappropriateness of Mr. Young's move to Ecuador caused him to be biased in his imputation of income. I see no basis for that submission. To the contrary, the judge was patient, listened to both parties, and set out his initial view on the issues before giving each side an opportunity to respond. Disposition [36] With thanks to both parties for their articulate submissions, I would dismiss the appeal with costs payable to Ms. Young. [37] FLEMING J.A.: I agree. [38] GOMERY J.A.: I agree. [39] FENLON J.A.: The appeal is dismissed with costs payable to Ms. Young. "The Honourable Madam Justice Fenlon"