Hello, I am Shilpa Mehta of the Feldstein Family Law Group.
Today I am going to discuss the Imputation of income where a parent or spouse is intentionally unemployed or underemployed.
The quantum of one’s support obligation is largely based on income. But what happens in the case where the payor spouse loses their employment? Will and should their support obligations be impacted?
In other words, how does the loss of a payor’s job, and hence that stream of income, impact the payor’s child and spousal support obligations.
The Child Support Guidelines provide that income MAY be imputed to a payor spouse where he or she is intentionally unemployed or underemployed.
Section 19(a) of the Guidelines allows a Court to impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include that the spouse in intentionally under-employed or unemployed.
The word “intentionally”, in the Guidelines does not mean that the payor made a deliberate decision to become under-employed.
What is intentional unemployment or underemployment?
When a payor has an obligation to pay support but does not work or does not work to his or her full potential or capabilities, that payor is said to be intentionally unemployed or under employed.
This can include but are not limited to circumstances where the payor fails/refuses to obtain alternate full time employment after:
- quitting his or her job
- being laid off; or
- is fired
A payor can also be considered to be intentionally unemployed or under employed if he:
- leaves his or her current job to pursue an alternate career or business that fails to provide an income stream
- reduces his or her work hours unilaterally or otherwise
- works only part time when full time work is available
A payor is not entitled to take advantage of his or her own voluntary reduction in income to reduce his or her support obligations.
Once it is determined that a parent or spouse is intentionally unemployed or under employed, how is income imputed to them?
When the Court imputes income to a payor, there must a rational basis underlying the selection of such a figure and it must be grounded in evidence.
Typically, the Court will look at what the payor was historically capable of earning and impute income to the payor accordingly.
In cases where the payor fails or refuses to obtain employment for which they are trained, the court may look at the availability of jobs in that field and industry standard of salary, benefits and otherwise to determine the quantum of income to be imputed.
The Court may also look at other factors in imputing income, including the age of the payor, his job history, education, skills, health, and standard of living when the parties were married, in addition to available job opportunities.
Once income is imputed to the payor, child and spousal support obligations can be determined accordingly.
If you would like more information on this and/or other issue, please feel free to contact us at the Feldstein Family Law Group at (905) 581-7222.