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Ontario family law typically obligates parties to seek employment and earn an income that they are capable of earning. If a spouse does not, they can be found to be intentionally underemployed. When a spouse claims to have a health condition that prevents them from working, they should obtain detailed evidence and a medical opinion that documents how their health or physical limitations impact their ability to earn an income. Even if a party receives government support through the Ontario Disability Support Program (ODSP), this does not necessarily mean they are unable to work or earn an income.
Parties Cannot Avoid Paying Support If Intentionally Underemployed
Singh v. Mahatoo involved a trial concerning child and spousal support, but both parties requested that the court impute income to the other. The parties separated in 2019, and the respondent’s income leading up to the separation was largely reflected in his salary. However, by February 2023, the respondent began working at Ford Canada and continued until August, when he underwent hip surgery and stopped. For a period of time after surgery, he received disability income and then employment insurance. He alleged that he was unable to return to work at Ford due to his injuries and that Ford was unable to accommodate him. However, he did not provide medical evidence about his condition, and no doctors were called to testify about his limitations. Conversely, the applicant earned little income during the marriage and had not worked outside the home since 2003 at the time of separation. She also claimed that she had been involved in a motor vehicle accident around 2000, which impacted her ability to work. After separation, she began to receive ODSP as well as other benefits for a monthly income of $4,315.
The respondent requested that the judge set his income for both 2024 and 2025 based on the Ontario Works benefit that he received. He claimed to be unable to work due to medical reasons and explained that he was pursuing a diploma to obtain less physically demanding employment later. He argued that it was reasonable for him to have had time to pursue these studies before seeking employment. Justice Wood agreed that “retraining can be an acceptable reason for unemployment”. Dryglai v. Pauli explained that parties cannot avoid support obligations through “a self-induced reduction of income” and that they have a duty to seek employment if they are healthy. But when a spouse is unemployed, the court can consider the spouse’s reasonable educational needs. In that case, the Ontario Court of Appeal noted that judges must assess the reasonableness of the spouse’s educational needs and determine what is required to meet those needs. For the Court, this could involve considering the demands of the course and whether studies could be balanced by some part-time work, to determine what amount of under-employment is reasonable.
Medical Evidence is Necessary to Prove a Spouse is Unable to Work
The judge noted that in this case, the respondent’s course was self-directed, allowing the student to progress at their own pace and schedule, and was only expected to require 20 hours a week. Therefore, the judge saw no reason why the respondent could not pursue some employment while also taking the course. In Maltese v. Coghri, the court indicated that the onus is on the party claiming an illness or disability to bring evidence that establishes that their illness prevents them from working. The respondent provided a single ultrasound report that discussed specific medical findings related to his shoulders. However, there was no evidence regarding his hip surgery, and no indication from the employer that it could not accommodate him or that an accommodation request had been made. Therefore, Justice Wood could not conclude that the respondent met the burden of establishing that he could not continue to work for his employer. The respondent also had the opportunity to provide evidence of his actual earnings and how his physical impairments affected his ability to earn income, but he chose not to. It was also worth noting that the respondent had been living with his current partner, and that she and her adult children had been paying the majority of their household expenses. From the available evidence, the judge concluded that the respondent was able to avoid full-time employment by relying on his partner.
It was also revealing that the respondent had withdrawn approximately $60,000 from his pension over the course of the year. The respondent suggested that the withdrawals should not be included in his income. The judge agreed that the court has discretion to exclude non-recurring income; this was not automatic. For instance, in Fraser v. Fraser, the Ontario Court of Appeal concluded that there was no presumption that non-recurring withdrawals from RRSPs should be automatically excluded from income for child support purposes. However, in this case, the judge determined that even if the pension income were included for child support purposes, it would not be included in the respondent’s income for ascertaining spousal support “since it derives from property that has already been equalized”.
This relates to concerns of “double dipping” identified in Boston v. Boston. Courts previously dealt with the issue that where a payor’s pension will be equalized as part of a property settlement, there could be a double recovery if the pension amount is later considered as income for spousal support when the support payor begins to draw from the pension. Therefore, the judge declined to include the pension withdrawals in the respondent’s income. Yet, Justice Wood did find that the amount was relevant when considering the overall amount of income to impute to the respondent. Particularly since the judge felt the pension income contributed to his voluntary unemployment. The judge concluded that the respondent’s income should be imputed at $80,000.
Receiving ODSP Does Not Imply a Spouse Cannot Earn any Income
Turning to the applicant, the judge also found her evidence was lacking. Justice Wood acknowledged that she had some physical limitations, but, without adequate medical information, she could not conclude that the applicant was disabled from working at all. As the applicant had received ODSP, the judge questioned whether the court could take judicial notice that her receipt of ODSP meant she was disabled from working. However, the question was addressed in Tyrrell v. Tyrrell. In that case, the court concluded that receiving ODSP or Workplace Safety and Insurance Board benefits was not sufficient proof for support purposes that the recipient was unable to work. Similarly, in Maltese v. Coghri, Justice Sherr explained that medical evidence, such as detailed medical opinions, should be provided to the court to document that they are unable to work. He further indicated that payors “must use reasonable efforts to address whatever medical limitation they may have to earn income. This means following up on medical recommendations to address these limitations”.
Overall, in this case, the judge found that there was no reason why either party could not have provided sufficient medical evidence that would have established their inability to work, stressing that “presenting the court with medical evidence need not be onerous, time-consuming, or disproportionately expensive”. Both parties failed to provide the evidence that was available to them. For the applicant, for the period from the separation to December 31, 2021, the judge did not impute any income to her, as she still had parenting obligations, and it was reasonable for her to require a period of time to find employment. However, since the court could not determine that she was completely disabled from working, for 2022, income equivalent to the minimum wage was imputed, which was an appropriate amount given the length of time she had been out of the workforce. By 2023, the applicant was receiving ODSP benefits, and the judge used that amount as her income going forward, as her ODSP income was higher than the minimum wage.
Take Control of Your Support Claim with Windsor’s Experienced Family Lawyers
As Singh v. Mahatoo demonstrates, simply receiving ODSP or having a medical condition isn’t enough to satisfy the court; you need the proper evidence to protect your financial future. Whether you are seeking child support, spousal support or defending against a claim of underemployment, the team at Johnson Miller Family Lawyers ensures your medical and financial evidence meets the court’s rigorous standards. Reach our Windsor office directly at 519.973.1500 or complete our online questionnaire to start your consultation.
