“A spouse is intentionally underemployed if he or she chooses to earn less than he or she is capable of earning having regard to all the circumstances (see Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 28).
The principles which the court should consider, among others, when considering a spouse’s capacity to earn income were very usefully summarized by Shelston, J. in the case of Verhey v. Verhey, 2017 ONSC 2216, at para. 35 as follows:
(a) There is a duty on the spouse to “actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children” (Thompson v. Thompson, 2013 ONSC 5500 (Ont. S.C.J.), at para. 99);
(b) A spouse’s capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities (Marquez v. Zapiola, 2013 BCCA 433, 344 B.C.A.C. 133 (B.C. C.A.), at para. 37);
(c) A spouse can be found intentionally under-employed or unemployed if he or she quits employment for selfish or bad faith reasons, or engages in reckless behaviour that results in a reduction of his or her income earning capacity (Scott v. Chenier, 2015 ONSC 7866 (Ont. S.C.J.), at para. 48);
(d) A spouse cannot avoid support obligations by a self-imposed reduction in income (L. (N.) v. P. (B.) (2000), 2000 CanLII 22516 (ON SC), 7 R.F.L. (5th) 335 (Ont. S.C.J.), at para. 27);
(e) Where a spouse experiences an involuntary loss of employment, courts will grant a “grace period” to allow the spouse to seek out replacement work. However, the absence of a reasonable job search will leave the court with no choice but to find that the spouse is intentionally under-employed or unemployed (Filippetto v. Timpano, 2008 CarswellOnt 544, 2008 CanLII 3962).
The onus is on the party seeking to impute income to establish an evidentiary basis that the other party is intentionally under-employed or unemployed (see Homsi v. Zaya, 2009 ONCA 322, at para. 28).”