“The starting point for determining a parent’s annual income is the total income in the party’s Income Tax Return (s. 16 Guidelines). However, that is not the end of the inquiry. Section 19 of the Guidelines lists non-exhaustive circumstances in which the court may impute income to a payor as it considers appropriate. The applicant relies specifically on ss. 19(1)(d) and (f) of the Guidelines, which permit imputation where it appears that income has been diverted which would affect the level of child support to be determined, or where the parent or spouse has failed to provide income information when under a legal obligation to do so. As the Court of Appeal for Ontario held in Bak v. Dobell 2007 ONCA 304, 86 O.R. (3d) 196 at para. 36: “When considering whether a circumstance is an appropriate one in which to impute income, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution.”
The exercise of imputing income is to be done in order to come to a fair and reasonable assessment of income, not to punish the payor. Cormier v. Vienneau, 2022 NSSC 98 at para. 26. It is a fact-specific and discretionary exercise. Of course, there has to be some evidence grounding the imputation figure. The court cannot select an arbitrary figure (Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 at para. 44) The onus is on the party requesting that income be imputed to establish an evidentiary basis for the finding: Homsi v. Zaya, 2009 ONCA 322 at para 28.
Gifts are not included in income imputation as a matter of course, but may be included in certain circumstances. Factors to consider when determining whether to include the receipt of unusual gifts in income were set out by the Court of Appeal in Bak v. Dobell at para. 75 as follows:
… Those factors will include the regularity of the gifts; the duration of their receipt; whether the gifts were part of the family’s income during cohabitation that entrenched a particular lifestyle; the circumstances of the gifts that earmark them as exceptional; whether the gifts do more than provide a basic standard of living; the income generated by the gifts in proportion to the payor’s entire income; whether they are paid to support an adult child through a crisis or period of disability; whether the gifts are likely to continue; and the true purpose and nature of the gifts.
Housing benefits may fall into the class of gifts constituting income Malkov v. Stovichek-Malkov, 2017 ONSC 6822 paras. 69-72, appeal dismissed 2018 ONCA 620, 15 R.F.L. (8th) 255.”