Parents who find themselves on the hook for child support or spousal support payments can sometimes attempt to lower their financial obligations by making less money than they are capable of. In order to prevent this from occurring, the courts are able to find a parent or former spouse to be “intentionally underemployed” when such strategies are pursued. The Ontario Superior Court of Justice was recently faced with an interesting situation when it was tasked with issuing a decision on whether a father who was in jail could be considered intentionally underemployed.


The issue was brought before the court when the mother asked the court to order interim child support from the father while he was incarcerated.

The couple started dating in 2013. They didn’t ever marry, but were separated in the first half of 2017. At the time of the trial they had two children, a five-year-old and a two-year-old. They lived with the mother following the separation, but the father continued to have regular access.

The father began paying child support in the amount of $1,000 per month in August 2017. However, in early 2018 he filed his income tax, which showed an income of about $88,000. According to the Child Support Guidelines, his income meant he should have been paying $1,269 per month.

The father has self-disclosed “mental health issues.” The mother raised concerns about his abuse of alcohol and illicit drugs. The father said he was receiving counseling for his mental health, but was having a hard time with the end of his relationship to the mother and felt as though she was trying to remove him from their children’s lives.

In the early morning hours of July 8, 2018, the father entered the mother’s home and assaulted her new partner with a baseball bat. He threw the mother and her partner down the stairs. He was arrested following the incident and was in jail awaiting trial at the time of the hearing.

The positions of the parties

The mother sought an order for the father’s child support payments to be increased to $1,326 per month based on his declared income. She understood that the father’s chances of extended incarceration would mean he would be unable to pay. However, despite the father’s incarceration, she asked the court to impute his income in order to formally acknowledge his obligations and the corresponding debt that comes with them.

The father acknowledged his support obligations, but argued he would have no income while incarcerated. Additionally, he claimed to have no real assets. His Financial Statement paints him as having a negative net worth, with $22,000 in assets and $28,500 in debts. It was his position that imposing child support obligations on him while in prison would create a significant debt, which would bury him financially upon his release from jail.

The decision

The court noted that the calculation for child support should be done based on the most current information available. In this case, the current information is that the father has no income. As a result of this, the mother asked the court to impute an income based on the father’s intentional underemployment. The court has a right to impute income stemming from Section 19(1) of the Child Support Guidelines.

The court turned to a 2002 Ontario Court of Appeal decision, which sets out the requirements of what a judge must consider when looking to impute income. They are:

  1. Is the spouse intentionally under-employed or unemployed?
  2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
  3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

The mother’s argument was that parents had been found to be intentionally underemployed in previous cases where the parent in question had engaged in reckless behaviour that resulted in a reduction in their earning capacity. Additionally, the court was aware of two cases where an incarcerated parent’s income was imputed to be what it was before they were incarcerated, with the rationale being “that intentional criminal actions led to the incarceration and resulting unemployment.  Incarceration was not considered to be a sufficient reason for the parent being unable to work.”

While the mother argued that the case law created a hard and fast rule, the court pointed out that the Guidelines clearly make the imputation of income a discretionary matter. The court wrote that the purpose of imputing income is to encourage the offending parent to modify their behaviour as it related to their earning capacity. Someone who is incarcerated is clearly unable to modify this part of their life. The court addressed this in its decision, which said,

“No order that I make will assist to get regular support flowing now.  If the (father) is ultimately acquitted, there might be an issue about the intentionality of his unemployment.  If the (father) is released relatively quickly, full imputation might indeed be found to be appropriate.  However, while the court must be mindful of the children’s need for financial support, if the (father0 will be incarcerated for a long period, for example say 5 years, the circumstances of all those involved will need to be practically and thoughtfully considered before he is saddled by way of imputation with a very large (in this example $76,000) debt upon his release, a debt that would be very difficult if not impossible to vary given that his circumstances while incarcerated are unlikely to change.”

For these reasons the court dismissed the motion, noting that it could be revisited before trial should the father’s situation change.

It can be difficult for people to navigate issues of child or spousal support. At Bodren Family Law, our experienced and knowledgeable team of lawyers help our clients through all stages of separation and divorce, including those related to spousal and child support. We focus solely on family law, and have settled over 4,000 cases over the years. We look for efficient and effective solutions to our clients issues, and will fight passionately on their behalf while also striving to keep our clients’ costs down. Please reach us online or call us at 905-576-6090 to talk today. Please remember to ask about our flat fees.