A parent’s obligations to pay child support do not cease simply due to a period of unemployment. While an application to vary the amount of support payable due to a reduction in income may be sought, unemployment does not automatically mean that a parent should provide less financial support to their children. Payor parents are generally obligated to seek and maintain appropriate employment to meet their child support obligations.
In circumstances of unemployment, courts will assess whether the payor parent is intentionally under-employed and whether the parent is capable of earning income before deciding to adjust a support award. Parents who cannot demonstrate their efforts to obtain employment may have income imputed to them because they are intentionally unemployed to avoid paying support.
Children Have a Right to Support from Their Parents
Children who are under the age of majority have a right to financial support from their parents. Section 26.1(2) of the Divorce Act explains that the Federal Child Support Guidelines (the “Guidelines”) are to be based on “the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.”
Section 1 of the Guidelines outlines the objectives which include establishing a fair standard of support to ensure that children can continue to benefit from the financial means of both parents following a separation. To meet this obligation, payor parents are expected to pursue employment and earn an income. In the case of L.S. v. M.A.F., the Court highlighted the fact that all parties are expected to pursue employment which allows them to earn an income which they are capable of earning, and further, that parties who choose not to work to their full capacity may be deemed to be intentionally under-employed.
Courts Can Impute Income if Payor is Intentionally Unemployed
Section 19(1)(a) of the Guidelines enables a court to impute income to a spouse if “the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.”
Parents Have a Duty to Seek Employment to Support Their Children
Section 14 of the Guidelines outline the circumstances in which a payor parents’ unemployment may constitute a change of circumstances which warrant a variation in a child support order. As Justice Kane explained in Filippetto v. Assunta Timpano, “…this is not just about money. It is about the needs and costs of two children whose interests must be the first priority for the parents and this court.”
In Filippetto v. Assunta Timpano, the payor father found himself unemployed, having lost his job through no fault of his own. The Court noted that he had not provided evidence of a diligent job search, apart from providing one email confirming an application he had submitted. The father asserted that he was not intentionally unemployed, however, the Court did not accept this argument, given the lack of evidence available to establish an active job search.
The case of Pommainville v. Geddes resulted in a similar outcome. In this case, the mother alleged that the payor father was intentionally under-employed to avoid his child support obligations as she claimed that he could earn a greater income. The mother indicated that throughout their relationship, the father was able to secure minimum-wage employment when he wanted to. The parties were in a relationship for a decade, and while there were times when the father had been unemployed, the mother believed that those gaps were due to the father’s temper. The Court accepted that neither the father’s care of his eighteen-year-old child, nor his criminal record, impacted his ability to pursue full-time employment. The father testified that he was physically sound and that nothing prevented him from obtaining full-time employment. However, he did not provide any evidence of his efforts to search out such employment. The Court found that the absence of employment evidence weighed in favour of imputing the father’s income for child support purposes.
Parents Cannot be Intentionally Unemployed or Under-Employed to Avoid Child Support Obligations
Courts guard against parties who choose not to work to their full capabilities or arrange their employment to earn less income.
In Drygala v. Pauli, the Ontario Court of Appeal considered the meaning of the word “intentionally” pursuant to section 19(1)(a) of the Guidelines. Some courts have interpreted this term as deliberate conduct by the payor to undermine or avoid their support obligation. Other courts have held that income can be imputed without any need to find a specific intent to evade child support obligations. The Court of Appeal followed the latter approach in Drygala v. Pauli. It was held that a parent will be intentionally under-employed if they choose to earn less income than they are capable of earning. Further, if they choose not to work and are capable of earning an income, they will be found to be intentionally unemployed.
Court Finds Parent Could Have Pursued Broader Employment Options
A finding of “intentional” unemployment may justify the imputation of income. However, Section 19(1)(a) of the Guidelines does not apply to situations and circumstances which are beyond the payor’s control. Even if unemployment is not the payor’s fault, parties are still expected to earn sufficient income, which matches their earning ability, in order to provide for their children.
In Burisch v. Gosal, the payor father sought an order to expunge all child support arrears. He had been ordered to pay support in line with the Guidelines, but following the loss of his employment, the arrears quickly amounted to $42,225. The father argued that the sum should be expunged due to the termination of his employment. The mother disagreed, claiming that during the unemployment period, the father could work as a freelancer. In reviewing the father’s finances, it became clear to the Court that he had received funds from a short term of work, the settlement of a wrongful dismissal action, and rental property income. However, none of these funds were used to fulfill child support obligations.
The Court found that the father did not try to pay the arrears and instead used the money he received for his own benefit. Although the father submitted a list of prospective employers which he applied to, as proof that he tried to obtain employment over the four-years during which he was unemployed, it was noted that these applications were primarily for controller and director of finance positions. While it was not the father’s fault that he became unemployed, the Court did not accept that he could not find any employment and dismissed his motion seeking an order expunging his child support arrears.
The Family Law Lawyers at NULaw Advise on Child Support Obligations and Variation Applications
The trusted family lawyers at NULaw in Toronto regularly assist clients who are navigating various family law issues, including divorce, separation, child support and post-divorce variations. We work to ensure that you and your children are protected and appropriately cared for, even when circumstances change. Reach out to us online or call us at 416-481-5604 to speak with a member of our team to learn more about your options.
