The responsibility to pay child support might prove difficult for some parents. In some cases, a parent can ask the courts to lower their child support payments if they face undue hardship in making them. But a recent decision from the Ontario Superior Court of Justice shows that proving undue hardship isn’t easy, and that the obligation to pay is not in and of itself enough to prove undue hardship.
The mother and father involved in the issue were together for ten years, but the relationship ended in 2010. During their time together they had four children who currently range between 10 and 19 years of age. The mother brought an application to the court seeking an order for child support retroactive to January 1, 2018. She also asked the court to impute an income higher than what the father reported in his tax returns for 2018 and 2019, stating that he worked for cash from time to time which went unreported. She said his 2019 income should be imputed at $152,748 while his 2020 income should be imputed at $111,542.
Previous court orders imposed child support obligations of $1,705 and later $1,433 per month.
The father asked that the court look at his reported income from 2020 ($24,000) and 2021 ($48,000), which was much lower than his reported income in 2018 and 2019, and that the court also consider that he has seven other children from three different mothers, including three children with his current wife and that all of his children should receive equal child support payments from him. He asked the court to look at his total income for support purposes, determine what the support should be for 11 children, and then set support accordingly.
The court began its analysis by stating that Section 19(1) of the Child Support Guidelines allow for the imputing of support when the court considers it appropriate to do so, including cases of intentional under-employment. Intentional underemployment can include a parent choosing to work a job which pays less than they are capable of making, or when they choose not to work. The court should look at factors such as age, education, experience, skills, and health when determining how much they are capable of making.
While the father said he did not make any money that was not reported, the court was critical of his lack of forthrightness when asked about his employment. The father had provided paystubs from his employer to the court, but he failed to mention that he was the sole shareholder of the company he worked for. He also said he had given the mother and the children money over the years, but there was no evidence provided to support this.
Ultimately, the court determined the father had not reported all of his income, adding that his claim that the number of children he has makes paying support difficult, stating, “It is hard to understand the decisions that the father has made to have eleven children. No explanation was offered. He is 40 years old. He does not appear to believe that it is his obligation to support his children. He could not answer when he asked who he thought would support all his children.”
The court stated that the father averaged an income of just over $98,000 over the last five years, but still failed to pay child support, despite there being an order to do so. As a result, his 2020 income was imputed at $111,748, his 2019 income was imputed at $152,748, and his 2018 income was imputed at $168,167.
Contact NULaw early in your separation to understand your rights and obtain the best possible child support arrangement for your children. Our firm and its forerunners have been advising clients on child support and other family law matters since 1953. We remain committed to upholding the principles established by our distinguished predecessors: combining big firm results with a small firm relationship, and an overall commitment to always put our clients’ best interests first. Contact us online or at 416-481-5604 to book a consultation.