“Where a spousal support recipient has had ample time to become self-sufficient and has taken no steps to do so, spousal support may be terminated. If support is continued, it may be appropriate to order time-limited support, as a way to emphasize the positive duty each spouse has under s. 17(7)(d) of the Divorce Act. Alternatively, the court may order a “step-down” in spousal support, often with a termination date at some point in future.
The “step-down” approach is based, in law, on imputing income to the recipient spouse. This, in turn, is based on s. 19(a) of the Federal Child Support Guidelines which provides:
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.
The test is substantially the same under the Spousal Support Advisory Guidelines, and is applied consistently for both child and spousal support claims.
To be “intentionally” under-employed does not require that the reason for the under-employment is to avoid support obligations. “There is no need to find a specific intent to evade child support obligations before income can be imputed”. ‘Intentional’ means a voluntary act and “makes it clear that the section does not apply to situations in which, through no fault of their own, spouses are laid off, terminated or given reduced work hours”.