“The mere fact that the Respondent has failed to file an Answer does not preclude the need to ensure that proper evidence is filed by the applicant to enable a family court judge to make an order for the relief sought: E.S.R. v R.S.C. (2019) ONCJ 381 at para. 208; CAS v J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.
The dilemma, of course, is that the father has not provided financial disclosure to allow the court recalculate child support and the mother has been unable to obtain any information to support her request for income to be imputed at $85,000. On the other hand, child support is the right of the children. The children should not be penalized by the father’s non-compliance with the law requiring him to provide his income information upon receipt of the mother’s application to this court for an order of child support: r. 13 FLR and s. 21(2) Child Support Guidelines, O. Reg. 391/97; see also parallel provisions in the Federal Child Support Guidelines, SOR/97-175, as am.
As a result of the father’s failure to file a response including his income information, the matter was set down for a hearing. In such circumstances, the court may draw an adverse inference against the spouse who failed to comply with the financial disclosure and impute income to that spouse in such an amount as it considers appropriate: ss. 19 and 23 Child Support Guidelines, O. Reg. 391/97; see also parallel provisions in the Federal Child Support Guidelines.
According to the 2019 Agreement, the father’s income in 2019 was $62,000. There is no evidence before me that the father is no longer employed as the mother continues to receive support from FRO. In the absence of information about what exactly the father does, it is difficult to determine what the average wage increases have been for the father’s profession to impute an income consistent with that wage increase.
This court is not entitled to impute an arbitrary amount of income to the father. Such an approach would be unfair: Monahan-Joudrey v. Joudrey, 2012 ONSC 5984 at paras 20 and 21; Staples v Callender, 2010 NSCA 49 at para 21. On the other hand, the children’s right to child support should not be undermined by the father’s failure to comply with his financial disclosure obligations and unwillingness to engage in court proceedings. For this reason, I find that a fair and reasonable approach would be to impute the father’s income to be consistent with the increase in cost of living since 2019.”