When it comes to child support and spousal support payments, people react differently. Many honourable payors cut back on other expenses in order to make ends meet, while some others simply quit their jobs and claim inability to pay.
In Ontario, the table child support payments under the Child Support Guidelines are calculated exclusively according to the payor’s income, whereas spousal support obligations depend largely on the gap between the income levels of the payor and the recipient. In other words, the more you earn, the more you pay. Conversely, the less you earn, the less you are supposed to pay.
Therefore, it’s not unheard of that a payor would intentionally quit his or her job or switch to a lower-paying position voluntarily in a bid to reduce support payable. At times I’ve seen a payor’s six-figure salary reduced to social assistance payments, purportedly because of the “economic downturn.”
Thankfully, under the law, if the court is of the opinion that a payor is intentionally unemployed or underemployed, it can impute income and fix the support amount accordingly.*
In deciding whether income should be imputed, the court must ask whether the payor chooses to earn less than what he or she is capable of earning, or whether the reduction is involuntary and reasonable.
Of course, no litigant will state to the court that his or her income has been intentionally reduced in an effort to evade support obligations. The Ontario Court of Appeal ruled in Drygala v. Pauli that there is no need to find a specific intent to evade support obligations before income is imputed.^ As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. If the payor chooses to earn less than what he or she is capable of earning, income may be imputed. A finding of “bad faith” is not required.
When imputing income, the court must determine whether the reduction of income is voluntary or involuntary, and reasonable or unreasonable. The factors include the age, education, experience, skills and health of the payor parent. The court may also look at the support payor’s financial circumstances and the history of payment or non-payment. Available job opportunities may also be relevant.
*The same principle regarding imputation of income applies both to child support and spousal support. See, e.g., Rilli v. Rilli, 2006 CanLII 24451 (ONSC)
^ (2002), 61 O.R. (3d) 711 (C.A.)
This blog is provided for educational purposes and for your reference. It is not intended as legal advice and should not be regarded as such. The law may have changed since the publication of this article.