When two people get divorced or separated there may be an obligation for one to pay spousal support or child support to the other. For the former, this amount is normally tied to the amount of income each of the parties makes, while for child support, the number of children the parties have is an additional contributing factor. Of course, throughout the course of one’s career, there can be a number of ups and downs and different jobs, which can mean that an individual’s income can change drastically. One key piece of support legislation is that the payor cannot be intentionally underemployed, meaning someone cannot take measures to deliberately lower their income if they are responsible for support payment. A recent decision from the Ontario Superior Court of Justice looks at a situation where a father asks the court to impute income on the mother while arguing his income should not have been imputed to the amount it had been. The case serves as a great example of what steps the courts must take to impute income.
Mother and father both change jobs following separation
The mother and father were married in 2006 and had three children before separating in 2015. They divorced in 2017, but lived separately and apart in the matrimonial home until it was sold in 2018. Following their moving out of the home, they have had an alternative week parenting schedule.
At the time of the trial, the father had been paying $1,115 per month in child support, with this amount based on his 2016 income of $65,000 and the mother’s 2016 income of $15,500. In addition to paying standard child support, the father also paid 75% of Section 7 expenses (such as extracurricular activities). The parties were supposed to exchange income tax returns with one another every year but did not do so.
In 2019 the father left his job at a company owned by his father. He said he did this because of issues related to health and stress. He worked for himself for a brief period before taking a new job a few hours away and has an annual income of $65.000. The court did not say what the father’s income was when he worked for his father.
The mother also experienced a number of job changes in the years following the separation, with her income ranging from about $15,000 early on, peaking at about $41,000, and now sitting at around $31,000 per year.
A trial judge issued a decision that imputed the mother’s income from 2018-2020 at $15,000, which the father says is an error since her income went up during that time. As a result, the father also said the trial judge should have ordered the mother to pay her share of the childcare and transportation costs he took on as a result of his new job being further away from home.
Should the parties’ incomes have been imputed?
The court stated that the test for the imputation of income comes from a 2002 decision from the Ontario Court of Appeal. It asks:
(i) Is the spouse intentionally under-employed or unemployed?
(ii) If so, is the intentional under-employment or unemployment required by virtue of reasonable educational needs?
(iii) If the answer to question #2 is no, what income is appropriately imputed in the circumstances?
The court noted that no specific intent to evade child support is required, rather it is enough for someone to have income imputed if they simply earn less than what they are capable of earning. It’s only whether that choice is reasonable or justified that matters.
The court found the motion judge to have made no error in finding the mother was not intentionally unemployed or under-employed. The father had failed to meet his burden before the motions judge. Instead, the father’s evidence was “scant” and was mostly in regard to the mother’s income during the marriage. While the father told the court that people working in similar jobs as the mother made $47,500 per year, there was no evidence provided to back up that claim.
Instead, the mother’s evidence showed that she never made more than $15,500 per year following the support order. This was not out of line to what the mother made during the marriage and after they separated, with her work consisting mostly of short-term or part-time jobs. The court also understood the necessity for the mother to not work during the early days of COVID-19 when their children were at home with the mother being the only person able to look after them during the day.
There was also a period of time over which the mother had taken time off work to take courses in order to increase her chances of finding better employment. The father wanted the court to impute an income on her during this period, but the court found that taking time away for work in order to increase the chances of more gainful work was not unreasonable.
In turning to the father’s imputed income of $65,000, this was something he agreed to when the parties met to resolve their support issues. The father told the court that he only agreed to this on the condition that income also be imputed on the mother. However, once again, there was nothing on the record, nor was there evidence provided by the father to support this claim.
As a result, the court declined to increase the imputed income in place for the mother while also declining to reduce the amount of income imputed to the father.
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