We’ve written a few blogs over the past few months discussing how the courts deal with parents who are intentionally under or unemployed. In these situations, Canada’s Child Support Guidelines allow the courts to impute the income of a parent – that is, the courts can determine how much money the parent should be able to make in order to establish how much child and/or spousal support they should pay. One situation surrounding imputing income we haven’t covered is that of a parent who has a drug addiction. In these cases, can the courts impute income? This was an issue decided a few years ago by the Ontario Court of Justice.

The family’s background

At the time of the hearing the father was 30 years old. He had a grade 10 education and had been working for ten to twelve years as an unlicensed mechanic. He began living with the mother in 2005. They had one child together before they separated in 2011.  At the time of their separation he was making about $34,000 per year.

Following the separation the father admitted that he fell into a habit of drug use, moving from New Brunswick to Toronto. This corresponded to the mother obtaining an uncontested final custody order. The order required her to bring a support claim against the father. However, she did not begin this process until 2013.

Looking to impute income

By 2013 the father had testified that he had been addicted to drugs for two years and had been unable to find work outside of casual mechanic jobs for friends. He testified during the trial that he had been clean for a few months, but had only made around $9,000 in the year preceding the trial.

The mother’s testimony was that the father had been working for cash at a number of mechanic shops and that he was making more money than he admitted. While the father said paid some support to the mother in the years following the separation, he had no proof of this. The court believed the mother, who said he had not paid any support.

The mother asked the court to impute the father’s income at $35,000 per year – about how much he was making prior to their separation.

The court began its analysis by explaining that the Child Support Guidelines allow the courts to impute income “as it considers appropriate in the circumstances.”

The court stated it is up to the parents to earn what they are capable of earning in order to support their children. In a 2002 decision, the Ontario Court of Appeal stated that a failure to do so would result in a parent being found to be intentionally underemployed. In the 2002 case, the court set out three questions that should be asked when considering a request to impute income. They were:

  1. Is the party 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 not, what income is appropriately imputed?

Father found to be intentionally underemployed

The court found the father’s decision to quit his job in New Brunswick and move to Toronto to be enough to find him intentionally underemployed. At this point, the onus shifted to the father to prove he should be exempted for a reasonable ground. His claim was that his drug addiction justified his underemployment.

The court presented conflicting case law on whether substance abuse or drug addiction could be a justifiable excuse. A 2002 decision rejected it as an excuse, writing “ However, even if one were to accept that the respondent is a drug addict, his addiction is not a defence to a support claim. When one first consumes illicit drugs, one must be taken to know that addiction can result: addiction is a reasonably foreseeable consequence, as is the resultant loss of income or employment.”

The court also looked at a 2010 decision, where drug addiction was found to have an adverse impact on the ability for someone to work. The decision stated, “Alcoholism and drug addiction are viewed as illnesses requiring treatment rather than unacceptable conduct based on individual choice. I am satisfied that the petitioner was not intentionally underemployed during the periods that he was in treatment facilities.”

The court did agree that substance abuse could be a reasonable excuse for under or unemployment, writing “This court views substance addiction as a health issue. With proper evidence, this court is willing to consider that substance addiction is a reasonable health need of a parent that can justify underemployment or unemployment”

However, this did not mean the father was going to escape consequences during that time. The judge’s decision stated “The required evidence was lacking in this case. It is not enough for a payor to come to court and state: ‘I am a drug addict and this is why I haven’t worked’.  The only corroborative evidence of the father’s addiction was a certificate that he completed a 60-day day treatment program (that was completed prior to the start date of this order). The court received no medical evidence about the father’s condition.”

The court was also critical of the father’s decision to quite a full-time job, as well as his decision to spend money on items such as a truck and a 60-inch television rather than making regular child support payments.

The court imputed an income of $35,000 for the period of time during which the father was underemployed.

Children can often make separation and divorce stressful in both an emotional and financial sense. The experienced and compassionate team of family lawyers at Borden Family Law help our clients through all stages of separation and divorce, including on issues involving child or spousal support. Our in-depth knowledge of the family law system is the result of practicing solely in family law. Please call us at 905-576-6090 or reach us online to discuss your situation today. Please remember to ask about our flat fees.