“Heather’s counsel argues that this termination (even if bona fide) is irrelevant because Jay has significant sources of unexplained income outside of his employment. She seeks to impute income to Jay based upon section 19(1) of the Federal Child Support Guidelines, SOR/97-175.
The imputation of income requires a rational and solid evidentiary foundation grounded in fairness and reasonableness: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711, at para. 44.
Where there are significant discrepancies in the payor’s evidence, the onus is on the payor to provide an explanation: see Abbas v. Albohamra, 2020 ONSC 591 where the court stated, at para. 52:
In reviewing the evidence, I agree with the trial judge there was a significant discrepancy between Mr. Abbas’ declared income, his lifestyle and his expenditures. When such a discrepancy is present, the onus is on the individual purporting their income to be a certain amount to explain that difference.
Heather says that Jay’s main source of income is cash from undisclosed sources. She says that he would give her stacks of cash to pay her expenses. She describes a lavish lifestyle which included expensive trips where they flew business class and stayed in 5 star hotels.
Heather has done a comprehensive lifestyle analysis of Jay’s spending which shows that Jay’s average net spending is $346,860. When this is grossed up this equates to gross income of $663,000.
Heather relies upon the following cases where courts have held that it is appropriate to gross up net spending when calculating income for the purposes of spousal support: Adams v. Campbell, 2003 CarswellOnt 3276 at 79; Gonabady-Namadon at paras 22-25 and 40-44; Hayward v. Hayward, 2015 ONCJ 212, at para. 27; and Li v. Wong at paras 3-7.
This lifestyle analysis was based upon: a) Jay’s average monthly spending on his American Express, BMO Mastercard and TD Visa in 2020 which totaled $177,900; b) actual expenses for the Portland Condo according to his budget; c) his claimed monthly costs not included in his credit card spending; d) his Lamborghini and Audi down payment and lease payments; and e) cash which Heather says he gave her after separation for a Range Rover lease payments and a nanny.
Heather says this analysis is conservative because it does not include any other spending reflected in his bank account debits and many cash expenses which she did not have receipts for, payments for the condo where he currently resides, and unexplained large deposits in his account.
Counsel for Jay argued that Heather’s lifestyle analysis was inadequate because it was based upon charts prepared from disclosure which Jay provided, but the actual credit card statements are not before me. If Jay had wished to challenge these charts as not being accurate calculations based upon the disclosure which he provided, he could have done so with his own analysis and charts.
Having declined to address Heather’s lifestyle analysis with his own evidence on these calculations, or his own analysis, I am not persuaded by Jay’s argument as to the sufficiency of Heather’s evidence on these issues.”