It’s not uncommon for a parent to seek to impute income to other parent for the purposes of support calculations, especially if they suspect he or she is intentionally under-employed. In a recent decision of the Ontario Court of Justice (Charron v. Carriere), the Court imputed income to both the father and the mother, finding that they were both under-employed.
Imputing Income under the Child Support Guidelines
Section 19 (a) of the Child Support Guidelines provides as follows:
Imputing income
- (1)The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
…
The Court in Charron reviewed many of the legal principles relating to the application of s. 19(1)(a), including the following:
- There is no need to find intent to avoid child support obligations to impute income under s. 19 of the Guidelines;
- There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential to meet the needs of their dependants;
- The court must consider three questions:
- Is a spouse intentionally underemployed or unemployed?
- If so, is the intentional underemployment or unemployment required by virtue of his reasonable educational needs?
- If the answer to question number two is negative, what income is appropriately imputed in the circumstances?;
- Parents can take jobs which generate less money as long as the decision is reasonable. If an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way;
- Where a party chooses to pursue self-employment, the Court will examine whether this choice is a reasonable one in all the circumstances;
- The Court will not excuse the payor from the support obligations where the party has persisted in un-remunerative employment or pursued unrealistic and unproductive career aspirations;
- The Court must consider not only the amount of income earned by the parent, but the amount that they could earn if they were working to capacity;
- In order to impute income to a parent pursuant to section 19 of the Guidelines, the Court must exercise a test of reasonableness. The Court must have regard to the payor’s capacity to earn in light of his employment history, age, education, skills, health, available employment opportunities, and the standard of living enjoyed during the marriage;
Applying these principles to the Charron case, the Court concluded that both the father and mother were under-employed.
Why Did the Court Find that the Mother was Under-Employed?
The Court concluded that it was not reasonable for the mother to earn less than minimum wage. She had been offered full-time employment, but refused it. The Court held that she should have made arrangements for after-school care for her children and either seek more hours with her current employment, find other employment, or work more hours in her hairdressing business. She was grossing approximately $13,000 per year. The Court imputed an income to her in the amount of $20,000, starting in 2017.
Why Did the Court Find that the Father was Under-Employed?
The Court concluded that the father’s decision to leave the pharmaceutical sales field was not unreasonable due to the substantial stress and aggravation of repeated short-term contracts. There was no job security in his industry. However, it was not reasonable for him to start a business with which he had little familiarity and no business acumen. He had a responsibility to seek employment in sales or use his educational background. At the time the parties separated, he was earning over $73,000 per year, and had the potential to earn close to a six-figure amount. His salary at the time of the application was $28,000. The Court imputed an income to him in the amount of $73,000, starting in 2017.
The Bottom Line
When considering whether you or the other parent may be under-employed, pay close attention to whether employment decisions and changes are reasonable in light of your or your ex’s age, work, experience, education, job opportunities, and health. Decisions regarding employment must be reasonable, and they must be made with due consideration for the financial support of your children.
For advice on issues of support, or any other family law matter, contact Gelman & Associates at (416) 736-0200 or 1-844-742-0200 or contact us online for a confidential initial consultation.
