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How to prove wilful underemployment...

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  • How to prove wilful underemployment...


    I'm trying to determine what would be grounds for wilful underemployment. My ex only worked part time when we were married, her choice. We had a daughter at home so it made sense. However it was always a touchy subject as we couldn't afford living on my salary alone and the little money she did she spend right away. We have been separated for almost a year and a half, soon to be divorced and have a signed separation agreement with joint parenting. We share all costs for our 2 kids and I give her child support and spousal support at the moment.

    She finally got a full time job about 8 months ago but it is at minimum wage with no vacation or sick time paid. She has a college diploma (which I paid most of) so I don't understand how this job can be the best she can find. She's been saying 5 months that she is looking for better but so far she has remained at her current work.

    I am wondering if I can do anything to encourage her to seek more income as for now, she is at the lowest range in the Guidelines and therefore I pay a lot of child support. I find it unfair as I have the kids at my home half the time and I have my own expense to pay too.

    One thing I have in writing from her in an email in which she says she doesn't want to increase her income as it will mean getting less money from me and from CCTB.... to me that means she understands and is willingly being underemployed.

    Her boyfriend is now moving in with her and it is making me more annoyed as I predict her willingness to increase her income will probably stop since she will have another source of income to supplement hers.

    Wondering what can be done... anyone with knowledge about this I would love to hear it!


  • #2
    Wow, your situation sounds almost identical to mine, minus the children. The courts state that she has to work towards becoming self seficiant. I dont know how your situation went in court but Ive been 6 times over the past 1 1/2 years and now on the way to trial. Everytime this situation has been brought up in court the judge says, "you know you are suppose to be looking for a job" and that is as far as it goes. She only works part time, the same situation as yours and when the question was risen about re-educating herself, the one judge actually said " what? do you expect her to quit her job?"
    Our agreement says her support ends after 6 months commonlaw or marriage, she lives with her boyfriend who earns more than me yet she gets half my income. TRY TO PROOVE IT. its all just words.
    Sorry for venting.


    • #3
      There is NO incentive for her to work...period. She in fact said so in an email.
      I think you will need to use the courts to force change on her and get financial relief for you.
      Is there anything in your separation agreement to address this issue?, likely not, but you need to review that document carefully.
      Do be patient, family law is terribly dysfunctional and expensive if using lawyers. check in here often for help. You do have a valid arguement

      Good luck


      • #4
        At least yours is working. Better than my I suppose.

        In any event, based on her training/skills/experience, start looking at the local job opportunities and track what is available in the area and what the average entry level wage is.

        Take that information, add in the email evidence from her and start making your case to have an income imputed to her. Once you confirm her boyfriend moves in, your other option is to claim undue hardship and see if you can pull that off. With an undue hardship claim, ALL adults in the household have the income considered.

        Also, if you have the children half the time, are you receiving the CCTB/UCCB half the year?


        • #5
          I Imagine it would be very difficult to PROVE wilful underemployment. Though you could use the email from her. That's about the only proof you've got.
          I'm finding it very difficult to find a job. For each job ad. there are hundreds of applicants.


          • #6
            Thanks for all of your comments, I just recently applied for the CCTB/UCTB. Another thing my ex told me I could not claim, and finally after a year finding out from an accountant that I do in fact qualify. Obviously my ex did not want to loose her 1/2... but at what point is it fair.

            I agree that finding new work can be hard... but in her case, she does have the worst paying job/benefits and any job would be better both financially and for the kids. She has a diploma in administration, not a very specialized field.

            The separation agreement does not stipulate anything about wilful underemployment... and we have gone this far in the process without having to go to court. I like the idea looking for employment in her area of expertise and see if she could have better opportunities. I also tried to help her when we first got separated to find a job as I am working in HR... and she refused my help to review her resume and all the job postings I found for her she told me she didn't want to look at them. basically for me to but out of her business.

            I'm thinking the courts may be my only choice. Maybe I'll let her know that I am looking at options to prove she could earn more money, maybe that will scare her enough to actually start looking seriously at increasing her revenus.


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