Spousal Support: When One Spouse Doesn't Work

According to TMZ, the star of "Gotham" and "Deadpool," Morena Baccarin, is fed up cutting massive cheques to her ex-husband every month. The Gotham star has paid her ex-husband approximately $340,088 in spousal support, $100,000 from their estate and $147,302 in residuals from "Deadpool". Morena estimates that she has paid her ex-husband more than half a million dollars since June 2015.

According to TMZ, Morena has been paying more than $20,000 per month as a temporary support order until the couple reach a final agreement. Morena claims that the temporary Order is prejudicing her because she will likely end up paying much less when the matter is finalized. Morena is also particularly upset about the amount of support that she is paying because her ex-husband has made no effort to seek employment.

In Ontario, determining the amount of support that a spouse has to pay is generally based on the payor spouse's gross income. However, the calculation can prove more complicated when one spouse is intentionally underemployed or unemployed.

The leading case for the issue of intentional underemployment or unemployment is the Ontario Court of Appeal case of Drygala v Pauli (2002). In Drygala, the Court laid out a three-part test when deciding imputation of income cases relating to intentional underemployment or unemployment. The three questions that the Court must consider in these types of cases are:

  1. Is the underemployment or unemployment intentional?
  2. If so, is the situation due to a spouse's reasonable educational needs?
  3. If not, what income should be appropriately imputed?

It is worth noting that the term "intentional" means a voluntary act and does not require that the party acted in bad faith. Rather, the party is generally considered intentionally underemployed or unemployed when they earn less than their capacity to earn based on the circumstances.

Given the above, Morena may be able to advance the argument that her ex-husband is intentionally unemployed. Morena and her husband are fairly young and her ex-husband likley has a formal education or some other qualification, there is certainly and argument to be made that he should be employed and therefore imputed with an income for support purposes. Ultimately, this may lower Morena's spousal support obligation to her ex-husband.

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