March 14, 2023 – Imputing Income at Interim Stage

“Justice Kraft addressed the challenge of imputing income at interim stage in Lidell-MacInnis v. MacInnis:

[75]           The   court   may   impute   income   to   a   party in   the   context   of   a   motion for temporary spousal or child support, but should exercise caution in doing so having regard for limitations on the court’s ability in the context of a motion to obtain a complete and accurate picture of the parties’ respective situations. This is particularly so in cases where the parties are still in the process of formulating plans and goals for re-organizing their affairs and lives in independent households. However, the decision as to whether or not income should be imputed ultimately remains in the discretion of the motions judge and depends on the particular facts of each case

d.    Once again, given the fact that the parties could have already had their trial – and they can still have their trial within a few months if they choose to make themselves available – I am not prepared to guess and make assailable findings within the needlessly restrictive (in this case) confines of a motion.

e.    Based on the incomplete, contradictory and untested evidence before me, I am not prepared to impute income to the father on an interim basis. This is a complex determination which must await what should be an imminent trial.

f.    Motions for interim support are usually presented relatively soon after separation.  But even if they are brought late in the litigation stream, motions are no replacement for a trial.  As Justice Charney recently noted in Da Silva v. Kelly, 2022 ONSC 1402 (SCJ), the level of analysis is inherently more limited at the motion stage:

[75]         Motions for interim support are summary in nature. The Court will generally not conduct a detailed investigation into the merits of the case: Singh v. Singh, 2013 ONSC 6476, at para. 11; Sandhu v. Dhillon, 2021 ONSC 1143, at para. 14. The full financial circumstances of the parties are not yet available, and a complete inquiry into all aspects and details of the case will have to wait until trial: Matus v. René, 2021 ONSC 1925, at para. 120. As stated by the British Columbia Court of Appeal in Tedham v. Tedham, 2003 BCCA 600, at para. 59:

An interim order is just that — one made pending trial, with the expectation that the full financial circumstances of the parties will be forthcoming and available to the trial judge. In most cases, interim orders are made in circumstances where there has not been full financial disclosure and the parties are well aware that some adjustment may have to be made once all of the relevant financial information is available.

[76]         I am also guided by the principles set out by Harvison Young J. (as she then was) in Teitler v. Dale, [2017] O.J. No. 182, at para. 23 (as reproduced by Faieta J. in Nifco v. Nifco, 2018 ONSC 2603, at para. 22):

1. 1. 1. 1. 1. 1. On applications for interim support the applicant’s needs and the respondent’s ability to pay assume greater significance;
               2. An interim support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;
               3. On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
               4. The courts should not unduly emphasize any one of the statutory considerations above others;
               5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
               6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
               7. Interim support should only be ordered where it can be said a prima faciecase for entitlement has been made out; and
               8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.”

         Gafanha v. Gafanha, 2022 ONSC 1613 (CanLII) at 49