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When Child Financial Contributes / Termination of Support / Willful Underemployment

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  • When Child Financial Contributes / Termination of Support / Willful Underemployment

    Hi! I have a settlement conference next week regarding child support for a 18 year old who is in college, first year + lives at home. There are a few financial matters for us to discuss and since i'm self-represented, I'm hoping others have experiences in any of these matters...

    Father has called us to court to request the following:
    - Child support to be reduced if/when our son earns more than $20,000 per year, noting in the brief that our son should then contribute towards his household costs
    - When child support will be terminated, which includes if our son changes programs, if his average drops below 50%, if his course load changes to part time, etc.

    Before the end of 2019, father was earning approx. $75k per year but his company shut down and then when the pandemic hit, it was difficult for him to find work so he started self-employment (in his sector). Since then, for the last 2 years (2020 and 2021), his annual salary average is now $35,000. Support has dropped from $600 to $300 p/m.

    My thoughts are...
    - Our son works 2 part time jobs in retail; his earnings will be approx $23k this year but it is precarious and what he earned this year may differ next; how would we even determine how much child support to "reduce"?
    - If our son is being made to contribute towards my household expenses, should he not be part of the process in making this decision somehow? I'm just not sure how such a claim can be made without his knowledge.
    - Currently, our son already pays towards his expenses; 1/3 of his college expenses, including books, 100% of his cell phone which was once shared 50/50 with dad before, all his outings with friends (not too many unfortunately because of covid)
    - Our son is also saving 50% of his earnings towards a car, insurance and his overall future; insurance will cost him $300-$400 per month + it will help him continue to attend school (next year when it is in person), drive to work, etc
    - Our son was diagnosed with ADHD a few years ago and had an IEP in high school SO he may decide to change programs, his average may drop one term, he may need to take on part time (I hope not but maybe)
    - Our son is struggling to balance it all right now and may need to revisit his therapist because it is evident (to him!) how overwhelming scheduling and planning + some added pressure from work

    In regards to father's earnings, I also suspect some kind of willful underemployment...
    - He has a contact for decent work with a union that he strongly encouraged our son to take but our son chose to pursue college. An entry level position starts at $60,000 per year (and father has shared all these details with me via email). Could he not take this job on until he finds something more in line with this chosen field?
    - Job search websites shows numerous posts for his chosen field with salary starting at $65,000 and up; he has a university degree and 10+ years experience in his sector
    - His partner is on the sunshine list so I don't believe they are struggling financially but that is an assumption on my part too
    - When I was on mat leave, my reduced earnings was a source of frustration for the father, where he attempted to use another year of my earnings to calculate our section 7 expenses saying I chose "to take time off to bear a child"

    I don't really know if the father is intentionally earning less but I do think he is not considering options available to him to earn as he was before and that is also suits him just fine considering our share of the post-secondary expenses are being split proportionately. I have requested that we equally share this expense instead. Is that reasonable?

    I'm really curious about other's experience with this same or similar matter on what I just shared. Please let me know!

  • #2
    I like the question and want to add my own piece
    1) the part-time course load is something i am interested in as the ex was doing that while "retraining" and so no income for child support was imputed.

    2) so if my kids go to school part-time instead of full-time shouldn't that work the same way where they dont have to contribute?


    • #3
      You’ve got a couple of issues here that need to be separated.

      1. Intentionally underemployed: the prevailing case law on this is Drygala v Pauli. You would need to prove your ex is purposely underemployed and in the current economic environment, that would be hard. He is still making a reasonable salary and has work. You could also ask for disclosure of any loan applications where he would put down a different income. But you would have to fight for that disclosure which is a pain.

      2. School expenses: if your kid is going to school full time then it doesn’t matter what he earns, he pays one third and dad pay his share of 2/3. If kid lives at home, it’s table cs. All the extra income means is he can afford extras like social activities, a car and cell phone. Dad’s share is tuition, books and necessary equipment. If your kid is failing his way through school to get support then no, dad is right.

      As for NewDay, if your ex was in school getting an education to do better, its an impute income of part time work. If you pay your ex it only matters for section 7.


      • #4
        Thank you rockscan for the response.

        On the school expenses…

        I hope you’re right and that support continues according to the table amount if our son is in school.

        My kid definitely does not want to fail – the possibility of failing stresses him horribly. And that kind of stress isn’t necessarily bad. He just can’t have the extra burden of knowing the financial support I’m given is also on the line and connected to failing school. I am still wondering what “dropping below 50%” means? Is it one course, overall average, one term, one year… The father has not been explicit but that may be something for us to discuss at the Settlement Conference.

        On the “willful underemployment”…

        Thank you for the case law reference. And yes, I see that it is the “lack of pursuit to earn what they are capable of earning” that I would need to prove. That is surely a challenge, especially with the ongoing pandemic. So my thought is, should he AT LEAST be trying to secure employment given entrepreneurship over the last 2 years is not yielding towards his potential? OR is it because he is doing something rather than nothing that it will suffice? I will be shocked if it is the latter.

        Disclosure is already a pain.. for both of us to be honest. When documentation has been shared, I have no idea how to interpret his earnings and there is no summary on what any of it means. I understand he does not need to provide a summary to me either. I think I need an accountant to make sense of it all.


        • #5
          You probably do but depending on his job he may also have had to apply for loans or grants. You could ask for those application. I would also ask for his full tax return and all attachments.

          As for your son’s progress…two former posters on here had kids in programs they failed. Support was still ordered so your ex is out of luck with that request and a judge will laugh him out of court.

          Tell him no. He pays his share of expenses and support on his income. Expenses he uses for his taxes are not necessarily eligible for reduction of income for support. There are lots of those cases on canlii. Truck drivers have tried that with income of 80 grand claiming their true income is only 20 after expenses. I read a few cases where the judges threw almost all expenses back in so definitely look at what he claims as gross and what his expenses are.

          Maybe someone else on here has more expertise on the income/expenses item.


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