“Under the Divorce Act, the custodial parent’s conduct can be considered only if relevant to his or her ability to act as parent of the child. Usually, the reasons or motives for moving will not be relevant to the custodial parent’s parenting ability. Occasionally, however, the motive may reflect adversely on the parent’s perception of the needs of the child or the parent’s judgment about how they may best be fulfilled. For example, the decision of a custodial parent to move solely to thwart salutary contact between the child and access parent might be argued to show a lack of appreciation for the child’s best interests: see McGowan v. McGowan (1979), 11 R.F.L. (2d) 281 (Ont. H.C.); Wells v. Wells (1984), 1984 CanLII 2646 (SK QB), 38 R.F.L. (2d) 405 (Sask. Q.B.), aff’d (1984), 1984 CanLII 165 (SK CA), 42 R.F.L. (2d) 166 (Sask. C.A.). However, absent a connection to parenting ability, the custodial parent’s reason for moving should not enter into the inquiry.”
Month: May 2019
May 1 – Imputing Income Principles
“Section 19 of the Guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.
Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. C.A.).
In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles: a) The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices. b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children. c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent. d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances. e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.
The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income: 1. Is the party intentionally under-employed or unemployed? 2. If so, is the intentional under-employment or unemployment required by virtue of his 2018 ONCJ 286 (CanLII) – 57 – or her reasonable educational or medical needs, or those of a child? 3. If not, what income is appropriately imputed?
The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, [2009] O.J. No. 1552. (Ont. C.A.).
Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See: Filippetto v. Timpano, [2008] O.J. No. 417, (Ont. S.C.).
The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.”