“Parties must earn what they are reasonably capable of earning. Otherwise, we risk harm to children in that the parties are failing to adhere to their responsibilities to support their children. One way in which we determine income is by imputing an income to the payor. We do that after a consideration of three questions:
i. is the payor intentionally unemployed or, in the case of this father, under-employed;
ii. if so, is the intentional unemployment or under-employment by virtue of the payor’s reasonable education or health needs; and
iii. if not, then what income is appropriately imputed to the payor?
Gordon v. Wilkins, 2020 ONCJ 115, at paragraphs 23-24, citing Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.).
The burden of proof on this motion rests with the mother – the party seeking to have income imputed to the other side. The standard of proof is on a balance of probabilities. An evidentiary basis is required to be put forward by the moving party, although the responding party’s failure to disclose their finances may mitigate that obligation to some degree. Once a prima facie case for imputation of income has been established, then the onus shifts to the responding party to defend the income position that they are taking. Gordon, supra, at paragraphs 25-26, citing Homsi v. Zaya, 2009 ONCA 322 (CanLII), [2009] O.J. No. 1552 (C.A.), Graham v. Bruto, 2008 ONCA 260, Lo v. Lo, 2011 ONSC 7663, and Charron v. Carriere, 2016 ONSC 4719.
If a party, like the father in our case, chooses to pursue self-employment as an alternative income earning path, the question becomes whether that choice was reasonable in all of the circumstances. If not, imputation of income to that party may be the result. Reasonableness is the key theme – parents are required to act responsibly when making decisions that may impact on the level of child support available. Tillmanns v. Tillmanns, 2014 ONSC 6773, at paragraphs 77 and 81, citing various authorities including Blake v. Blake, 2000 CarswellOnt 2477 (S.C.J.).”