When determining child and spousal support obligations for couples going through divorce, courts will look at, amongst other things, how much money each person in the relationship makes. A recent case heard by the Ontario Court of Appeal saw a husband claiming the original trial judge had made errors in determining both parents’ incomes, finding that the wife was unintentionally underemployed, while at the same time failing to make the same determination for the husband.

Wife quits her job after birth of second child

The husband and wife started living together in 2000 and were married two years later. They had two children, the second of whom was born in 2004. The wife, who was a teacher, stopped working after the birth of their second child, and stayed at home, eventually opening a children’s play centre. The couple divorced in 2009.

The couple agreed on joint custody of their children, an agreement that saw the children spending an equal amount of time with each parent. At this time, the wife was earning approximately $15,000 per year from her play center business, with the business being valued at approximately $55,000. The husband worked as a television editor from 1996-2012, after which he was terminated. He had been making $64,000 in 2008, but was making $140,000 when he was terminated in 2012. The trial judge determined his income in 2012 to be $77,923.

Decision of trial judge

At trial, the husband argued the wife was intentionally underemployed and for the purpose of determining spousal and child support, should have an income reflective of that.

The trial judge disagreed, stating the couple had together made the decision that the wife would leave the workforce to care for their kids. The trial judge ordered the husband to pay retroactive child support of $714/month and retroactive spousal support of $691/month dated back to November 1, 2009.

The husband appealed, arguing the trial judge erred in not finding the wife intentionally underemployed, as well as that the judge failed to take into account that the husband was unintentionally underemployed, after being terminated from his job in 2012.

Court of Appeal sides with husband

On appeal, the court found the trial judge did indeed make an error in not imputing income to the mother, as there was no evidence that showed she could not resume her teaching career after the divorce. The court turned to the Federal Child Support Guidelines, which allows courts to impute income in situations where a spouse is intentionally underemployed.

The court recognized that there was no bad faith or intention by the wife to avoid child support obligations, but said such findings are not required to make a decision to impute income. Instead, all that is needed in order to impute income under intentional underemployment is to find that a parent is earning less than they could be. In this case, the mother could have been making $70,000 per year as a teacher instead of the $15,000 she was making at the time. The court also found that the husband was unintentionally underemployed, ruling that each parent should have an imputed income of $70,000. As a result, neither parent was obligated to pay child or spousal support.

Determining what is appropriate for child or spousal support can be a difficult process. The experienced and compassionate team of family lawyers at Borden Family Law can help you through all stages of separation and divorce, including spousal and child support. Our clients benefit from our experience and in-depth knowledge of our family law system. Please call us at 905-576-6090 or contact us online to discuss your situation. Don’t forget to ask about our flat fees.