April 23 – Imputing Income

“Subsection 19(1) [of the Child Support Guidelines] is clearly intended to capture cases that, in fairness, require an adjustment to the payor’s presumptive income and, for this purpose, it provides a court with the discretion to impute income when it is “appropriate [to do so] in the circumstances”.

The list of circumstances in s. 19(1) is not exhaustive: the legislature only provides that the list “include” items (a) – (i).  Further, there is nothing in the provision that suggests other appropriate circumstances must be analogous to those specifically enumerated, although similarity of circumstance to one listed in s. 19(1) would support the imputation of income, simply because such a circumstance would be consistent with legislative intention.  The absence of analogy to a listed circumstance is simply a factor to be considered in interpreting the provision.

Some cases have held that there must be similarity between a new appropriate circumstance and the listed circumstances.  However, Riel v. Holland, [2003] O.J. No. 3901 (C.A.) makes it clear that the listed circumstances are simply examples and it is open to find new circumstances in which to impute income, provided that the new ground is consistent with the purpose of s. 19(1) and the Guidelines generally.  Writing for this court in Riel, MacPherson J.A. concluded at para. 36:

The wording of s. 19 of the Guidelines is open-ended (“which circumstances include”), thus indicating that the categories listed in that section are merely examples of situations in which income may be imputed. There are, therefore, other potential scenarios in which income can, and should, be imputed.

If appropriate circumstances arise, particularly ones unforeseen by the legislature, a court has the discretion, to be exercised on a principled basis, to impute income to a payor parent.  When considering whether a circumstance is an appropriate one in which to impute income, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution.”

Bak v. Dobell, 2007 ONCA 304 (CanLII) at 33-36