“The Ontario Court of Appeal in Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 23 broke down this requirement into the following questions for consideration:
1. Is the spouse intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
The definition of “intentional” has been considered in various decisions. Early cases suggest that there had to be bad faith or a deliberate attempt associated with a parent’s under-employment or unemployment so as to avoid his or her support obligations. Other cases concluded that there was no need to find specific intent. The Ontario Court of Appeal clarified that if a parent chooses to earn less than he or she is capable of earning that amounts to intentional under-employment or unemployment. The Court explained that “[t]he word “intentionally …does not apply to situations in which, through no fault or act of their own, spouses are laid off, terminated or given reduced hours of work”: Drygala, at para. 28.
In the same decision the Court noted at para. 38:
As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.
Finally, section 19 of the Guidelines is not an invitation for the court to arbitrarily select an amount as imputed income. “There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence”: Drygala, at para. 44. It must also be reasonable in all of the circumstances.”