A recent costs decision from the Ontario Superior Court of Justice was in relation to a case the court heard last year on the idea of intentional underemployment in child support situations. Intentional underemployment is when a person with child support or spousal support obligations intentionally loses their job or takes a job with a lower income in order to be able to pay less support. The facts behind the decision highlight the nuances that come with such situations.

Father gets a promotion that pays less

The issue came before the court after the father applied to have his child support obligations be lowered from the $415 per month he had been paying. In fact, his position was that the mother should be made to pay him $89 per month in child support. He said that his request stemmed from a decrease in income he experienced after moving from a job that paid $138,658 in 2018 to one that paid $98.670 in 2019.

The husband’s position was that while his total income was lower, that was because his base salary had increased, but his ability to make overtime earnings in his new position, which is managerial, has been taken away. He told the court that he applied for the position before the parties had an order in place related to child support and that while the new job pays less at the moment, he took it with career growth in mind and expects to continue to grow in his job and eventually make more money.

The mother told the court that she did not believe the father had demonstrated a material change in circumstances that warrant a change to the order. She said his decision to accept a job that pays less was not a reasonable one to make and that he has an obligation to provide for his children to the maximum of his ability.

Did the father’s actions amount to intentional underemployment?

The court accepted that the father applied for his position before the child support order was put in place. The court also agreed that his new position qualifies as a promotion, though it had nothing other than the father’s word that it would lead to further career growth. However, the court found that on a balance of probabilities, it seems fair to conclude that his base salary could be expected to increase as he advances his career, noting he had already received a raise of $5,000 per year since he took the new job.

The court also found that the decrease in the father’s income was significant and that it constituted a change in circumstances. The court ruled that rather than the father paying the mother $419 per month, the mother would have to pay the father $89 per month since they share parenting time and she makes more than he does.

Contact NULaw early in your separation to understand your rights and obtain the best possible child support arrangement for your children. Our family law lawyers 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.

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