The amount of child support a parent has to pay after separating from the other parent is dependent on, amongst other things, the amount of income they make. In one recent case, the Ontario Superior Court of Justice had to determine whether it should issue a summary judgment on child support and sale of a jointly owned home after a father quit his job as a long-haul trucker due to alleged dizziness, thus avoiding making child support payments.

A Claim Of Disability

The mother and father started living together in 1989. When they separated in 2011 they had twin daughters, who were 12-years-old. The mother had sole custody of the children since the separation, and after pleading guilty to assaulting the mother, the father’s bail conditions dictated he have no contact with either the mother or the children. The father’s child support obligations were established on January 29, 2014. Working as a long-haul truck driver with an income of $66,000 per year, he was ordered to pay $968 per month, to begin on March 1, 2014. Just before he was scheduled to begin making payments, he claimed he suffered “a bout of encephalitis” (inflammation of the brain) which resulted in paralysis of his face, dizziness, vertigo, and some mental impairment. As a result, he claimed he was no longer able to work and was not able to pay child support.

Little Evidence To Support The Claim

The father provided clinical notes to the court on April 9, 2015. The notes, dating back to March2014, stated he had some medical issues due to an infection in his ear, resulting in “some facial paralysis of lack of movement and feeling in the right hemi-facial region.” However, the notes were also explicitly clear in stating he did not have a stroke. By the time the court reviewed the matter, the medical notes were two years old. The father had not provided any medical reports since. After leaving his job, he did not apply for long-term disability.

Imputing Income

The court determined the father had no good reason to leave his job, and had likely done so in order to avoid paying child support. As a result, the court relied on Section 19 of the Ontario Child Support Guidelines, which allow the courts to impute (assign a value of) income to a parent when it is found the parent is capable of earning more income than claimed. The reasoning behind this rule is that a parent has an obligation to support their children, and to meet that obligation, they must earn what they are capable of. The court explained this by turning to the reasoning laid out in Duffy v. Duffy from the Newfoundland and Labrador Court of Appeal:

1. a) The fundamental obligation of a parent to support his or her children takes precedence over the parent’s own interests and choices.
2. b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her own children.
3. c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.
4. d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.
5. e) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.

The court then turned to an Ontario Court of Appeal decision, Drygala v. Pauli, which set out three questions to be answered by a court when considering a request to impute income. They are:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs?
3. If not, what income is appropriately imputed?

The rules provide no obligation for the court to find a specific intent to evade child support obligations. The court found the father voluntarily left his employment. He did not lose his driver’s license, and provided no reason as to why he could not continue working in his profession. The court used his income reported in tax returns to impute an income of $66,000, leaving him in arrears of $17,600.62, which was to be paid to the wife from the proceeds of the sale of their jointly owned home. The father also had an obligation to make continuing child-support payments based on his imputed income. The lawyers at NULaw offer services in all areas of family law, including matters of child or spousal support. The complexity of support cases mean it is important to obtain legal advice in the early stages of a separation. Contact us online or by phone, at 416-481-5604 to schedule a consultation.