BACKGROUND
The Applicant and the Respondent were married for two decades before the Respondent fled Canada to Spain with his girlfriend. The Applicant’s only source of income was through the Ontario Disability Support Program (“ODSP”), and she received no child or spousal support from the Respondent before he left Canada. The Respondent held title to the matrimonial home but had paid nothing toward the mortgage or regular house maintenance. The Respondent was an “Industrial Electrician”, being a Plant Electrician between 1995 and 2005, followed by a new employer from 2005 to 2007, a period self-employed from 2007 to 2010, and finally operating a sole proprietorship from 2011 onward. The Applicant sought to impute the Respondent’s income for the purposes of child and spousal support based on employment listings for Electrical Engineers in Toronto submitted in evidence.
ISSUES
- Should the Court use their discretion to impute income to the Respondent based on the averages the Applicant submitted as evidence of the Respondent’s income- which were listings from various employment websites?
ANALYSIS
The Applicant asked the court to impute an income of $89,682.67 to the Respondent based on an average of three Toronto employment listings for “Electrical Engineers”. She argued that the decision in Osanebi v Osanebi 2023 ONSC 2546 supports the proposition that the Court should not infer that a party earns minimum wage in the absence of evidence of what they actually earn. As the Respondent had years of experience, the Applicant argued that it was entirely possible he could be earning in the upper income amounts for Electrical Engineers.
However, the Court determined these employment listings were “the clearest form of hearsay being statements made out of court being proffered for the truth of their contents”. These were statements from random websites, with unknown authors and therefore unknown reliability. Not only were these listing inadmissible, but the Court stated that the Applicant submitted no evidence to show how or when the Respondent became a credentialed Engineer. The “cherry-picked small number of hearsay ads” could not form a generalization capable of inferring an average income for the industry.
Per Drygala v. Pauli 2002 CarswellOnt 3228, an imputation of income to a payor must be grounded in evidence. This imputation is not arbitrary and must be based on admissible evidence. As minimum wage is set in law, it is not a factual assumption based on misunderstanding or bias. Moreover, using income generalizations from population-wide Statistics Canada tables does do not consider the Respondent’s age, education, experience, skills, or health. Official government reports are admissible to evidence as an exception to the hearsay rule, but an expert witness is needed to ensure the data is used appropriately. This was not done by the Applicant.
While the desire to draw adverse inferences against a party who has withheld legally required disclosure is strong, this does not license the court to arbitrarily impute income without evidence to a payor.
CONCLUSION
The Court declined to impute income to Respondent based on the Applicant’s averages from various employment listings. Instead, the Court imputed the last reported income for the Respondent in the amount of $50,000. The Applicant was entitled to spousal and child support, the former of which was to be collected as a lump sum to be charged against the Respondent’s share of the matrimonial house value.