“I am aware of two decisions where imputation was considered for child support purposes while the payor was incarcerated. In both, the existing orders were in essence continued based on previous earnings: Khentov v. Bieler, [2007] O.J. No. 1159 (Ont. S.C.J.) at paragraph 23, and Billingsley v. Billingsley, 2010 ONSC 3381 (Ont. S.C.J.) at paragraph 52. The rationale, as in the above paragraph, was that intentional criminal actions led to the incarceration and resulting unemployment. Incarceration was not considered to be a sufficient reason for the parent being unable to work.
The applicant suggests those latter cases lead to a seemingly hard and fast rule that where a support payor is incarcerated child support is to be imputed based on prior earnings. However, I note that imputation is discretionary under the Guidelines (Drygala at paragraph 44), and the ultimate consideration (per the third part of the test in Drygala ) is always reasonableness. A situation where a person’s drug and/or criminal behaviour has led to decreased earning capacity may be somewhat different than a situation where a payor is incarcerated and is therefore simply unable to earn any income. In the former, the payor would still have the capacity to do something to address his or her issues, and have the potential to correct the failure to satisfy the support obligation.
While all the 19(1) listed criteria are clearly designed to direct the court in the exercise of its discretion in determining reasonable income, given the way it is applied subsection 19(1)(a) has the added practical role of encouraging or in effect coercing parents to earn to their capacity to support their children. However, an incarcerated parent cannot modify his or her behaviour by finding suitable employment in response to an imputation order. The order proposed by the applicant here would simply create debt. As argued, there is also an underlying element of punishment or penalty for the alleged criminal behaviour.
I am not convinced that there is an absolute rule that the court must always impute income where the payor was working prior to incarceration. The two cases referred to above were fact specific and considered many other contextual elements. In both the payor had already been convicted of the crimes. Most importantly for this motion, those decisions were final orders. This is only a request for interim support. In my view it is preferable to have the trial judge, on better evidence and with more up-to-date information, assess what would be reasonable support going back to the date of the incarceration in the respondent’s particular circumstances. No order that I make will assist to get regular support flowing now. If the respondent is ultimately acquitted, there might be an issue about the intentionality of his unemployment. If the respondent is released relatively quickly, full imputation might indeed be found to be appropriate. However, while the court must be mindful of the children’s need for financial support, if the respondent will be incarcerated for a long period, for example say 5 years, the circumstances of all those involved will need to be practically and thoughtfully considered before he is saddled by way of imputation with a very large (in this example $76,000) debt upon his release, a debt that would be very difficult if not impossible to vary given that his circumstances while incarcerated are unlikely to change. As noted in Jesse v. Jesse, 2010 ONSC 861 (Ont. S.C.J.) at paragraph 64, a cautious approach to income is appropriate on temporary motions for child support. I also note that the respondent raises his mental health and its connection to his circumstances. Imputation may not be appropriate if a parent is unable to work for mental health reasons: see Fraser v. Fraser, 2013 ONCA 715 (Ont. C.A.) .”