This case deals with the imputation of income for child support. Imputing income is when the judge finds that the amount of income the payor parent is claiming is not a fair reflection of their income. As a result, the judge attributes income that is either based on an estimated income that reflects the payor’s capability of earning (which means the payor has the ability/skill to make this income, but deliberately chooses not to) or the Court will use actual figures if they exist (e.g. when the payor leaves a higher paying position for a lower paying position with no valid reason other than to evade paying higher support).
The Mother in this case was asking that the payor Father’s income be imputed at $90,000.00 per annum. However, the Father wanted to pay child support based on his actual income of $25,000.00 per annum. The Mother argued that the Father was purposely under-employing himself as he had earned a Software Engineering Degree and decided to work as a security guard instead. The Father argued that his actual income of $25,000.00 per annum should be used to determine his child support obligation.
According to Section 19(1)(a) of the Child Support Guidelines,
(1) the court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include, (a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse.
The onus of establishing intentional unemployment or under-employment rests on the Mother (person requesting the imputation of income). In order to establish intentional under-employment or unemployment and impute income, there is a three part test to satisfy.
- Whether the payor is intentionally under-employed or unemployed – for instance, if he or she chooses to earn less than what he or she is capable of earning. The Court must look at whether the act is voluntary and reasonable;
- Whether there is a reasonable justification for the underemployment – If the payor is intentionally under-employed, is this by virtue of his/her reasonable educational needs, the needs of the child of the marriage or reasonable health needs; and
- If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed? The court considers the payor’s capacity to earn income in light of their employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties’ relationship. Basically, the court looks at the amount of income the party could earn if he/she worked to capacity.
The defence available for avoiding an imputation of income is to show that the under-employment is reasonable. A parent is able to take a job with less income so long as the decision is reasonable. The ideal way of exemplifying reasonableness is through providing evidence that shows such under-employment is meant for
- educational needs,
- the needs of the child or
- health needs.
The Father claimed he no longer pursed a career in software engineering because of his carpal tunnel syndrome. The problem with his claim is he lacked medical evidence to prove his health need. Also, the Father claimed he wanted to get a Master’s degree and a Ph.D. in software engineering, yet again, he lacked evidence to show that he would go through with this plan (e.g. registering for courses).
At the end of the day, the Court found that the three part test was satisfied. The Court decided that the best evidence to support the amount of imputation of income was presented by the Father. The Father stated that based on his training in software engineering being at entry-level, his education, and the job market for the computer industry, his income should be imputed at $45,000.00-$50,000.00 per annum and the court relied on this amount.