Imputing Income to the Intentionally Unemployed or Under-employed
Separating spouses and parents and family lawyers often encounter situations where a parent or spouse alleges that the other party has “quit” their job to avoid child and/or spousal support obligations, or where the other party is working in a position that pays less than they ought to be making. In some cases, spouses may be earning income from undisclosed and untraceable sources.
Under s. 19 of the Child Support Guidelines, the Court can impute income to payors if the argument is made out that the person is earning less than their capabilities without justification. Essentially, the court can fix an income for a support payor which is in line with what they can or ought to be earning.
The law allows courts to consider special circumstances where the under-employment or unemployment is justified: where the needs of a child dictate same, or the reasonable educational or health needs of the parent or spouse.
Unlike some other provinces, in Ontario, the test for “intentional” under-employment or intentional unemployment does not require the purposeful intention to avoid support obligations. If a support payor (or in some cases the recipient) is not working to his or her full potential without a permissible justification, he or she may still be required to pay support based on the higher income that has been ascribed to him or her, regardless of the employment or position held before the accusation arose. The basic premise is that support obligations are important and children and spouses deserve to be supported by in accordance with an income that the support payor is capable of making, and not what he or she chooses to make.