“Section 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175 permits the court to impute additional income where a spouse is intentionally underemployed:
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
This section was discussed by the Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.). The trial judge referred to Drygala v. Pauli and correctly observed that in order to find intentional underemployment and impute income to a parent, there is no need to find a specific intent to evade child support obligations. He also noted that in order for parents to meet the legal obligation to support their children, they must earn what they are capable of earning.
There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras. 24-37. The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.”