Let's reset the stage. A former spouse can easily make a hefty (mid-six-figure year) salary, but decides to be minimally employed instead. The other former spouse makes five figures.
Normally, in calculating support ("alimony"), the high-earner pays the lower-earner. Even if the former elects not to work. We "impute" the income the high-earner could earn.
The individuals here have a teenage child. The first (high-earner) spouse has custody, so the low-earning spouse pays child support. Should the low-earner get support/alimony from the high-earner, or should we instead refuse to impute income to the high-earner, and leave the parties as they are (with the low-earner paying the high-earner)?
The trial court imputed income. The Court of Appeal reversed. Holding that you're only allowed to impute income if it's affirmatively in the "best interests" of the child.
Yours truly supported an alternative rule. Arguing that the low-earner should receive support as long as it wasn't inconsistent with the interests of the children. Claiming that the transfer of wealth from a custodial parent to a non-custodial parent never benefits a child -- since it always reduces the amount of money that a custodial parent might potentially otherwise spend on the child -- but is nonetheless fair.
The Court of Appeal then modified its opinion. Adding a footnote that says (in relevant part): "Obviously, to reduce the amount of money a custodial parent receives will never be 'consistent with' the best interests of the children, all else being equal. Accordingly, imputation to a custodial parent requires some offsetting benefit to the children, which can often be found in the benefit of the noncustodial parent being able to spend more time with the children."
I appreciate the caveat. It makes the Court of Appeal's rule slightly better. It also made me recognize that it was an overstatement when I said that imputation would "never" help children. The Court of Appeal rightly articulates a potential exception to this purportedly categorical result.
But I still think my rule is better than the Court of Appeal's.
I should have said that almost never will imputation help the children. Yes, in a small number of cases, it's possible that giving the low-earning spouse support will enhance her ability to spend time with the kids. Maybe permit her to ditch a second job, or buy another plane ticket to visit the kids. I can imagine such situations.
But they're rare. Exceedingly rare.
The overwhelming majority of cases are exactly like the one here. Keeping the poorer parent poor doesn't mean s/he'll spend less time with the kids. It just means s/he'll be unfairly disadvantaged by the richer parent's unilateral decision to be underemployed. Ergo the result here. No support from the six-figure parent to the five-figure parent. Even when paying such support wouldn't impact the two teenage kids here even in the slightest.
So I like the footnote. But still prefer my alternative.
