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Impact on support requirement following short term disability

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  • Impact on support requirement following short term disability

    Hi all,

    The latest development in my wife and I's saga with her ex is his recent non-work related injury. The short term disability package with his employer provides him with 2/3 of his pay, but they also allow him the opportunity to top-up using his vacation time, or any other banked time. He stopped paying child support entirely after his injury.

    There is currently no order in place between them (we are currently in litigation, nearing a court date). Does anyone have any experience or know of any precedence around requiring that a person top-up when that option is available? Alternatively, is it possible that a court will impute income to a person who voluntarily chooses not to increase their income where possible? How about the question of whether his employer offered him modified duties or not...I'm assuming that is an important question that needs to be answered. Anyway, just looking to see what our best options are...if in fact there are any.

    Thanks!

  • #2
    Its common knowledge stuff really. Parents are expected to maximize their income potential. So, the person in question will have to demonstrate they have done this. Even if they are on short term disability. At a minimum the other parent should be paying CS based on their income even if it is 2/3.

    Just because you go on disability doesn't mean you are sheltered from paying CS. The amount you will pay is based on your income. If your income goes down that will be reflected in how much CS you pay.

    Comment


    • #3
      Thanks Tayken,


      Yeah, unfortunately until we get an order and can go through FRO, we're pretty much stuck...very close to a final court date though. Do you know of any case law that would touch on "maximizing income potential"? Its probably a grey area, but I would argue that maximizing income would include topping up with vacation pay if that option were made available by your employer.

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      • #4
        I’m interested too. My ex decided to stop working full time and start working part time after agreement done. Consider having a monthly amount in agreement for childcare/section 7. I don’t have that and FRO can’t collect because it is not a specific amount

        Comment


        • #5
          Denbigh, I came across two cases that might be of interest: Ontario Court of Justice (Charron v. Carriere) and Stewart v. Turner, 2014 ONCJ 464 (CanLII). In the first case, a couple comments that caught my eye..."There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential to meet the needs of their dependents" and "The Court must consider not only the amount of income earned by the parent, but the amount that they could earn if they were working to capacity". In Stewart v. Turner, the decision included some of these comments: "parents must not arrange their financial affairs so as to prefer their own interests over those of their children"; "income should be based on what a party should or could reasonably be earning in the circumstances" and "Consideration can also be given to whether a parent makes a voluntary choice to earn less money than his or her capability, in which case the Court will assess whether the choice was reasonable given the particular circumstances". I think this last statement is the most important...in your case it sounds like it will be important to determine the reason why your ex went from full time to part time employment. If there is a legitimate reason, then it could be hard to argue. However, if not, then I would refer to this other comment in the Stewart v. Turner case: "Sometimes, the Court can also give consideration to scenarios where there is an obvious motive to avoid support, or scenarios where a parent is simply lazy and self-centred, or does not view his or her lack of ambition as an intention to avoid child support". If your ex went to part time just because they didn't want to work as much, you have a strong argument that they aren't maximizing their income potential and that their motivation is laziness or self-centeredness.

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          • #6
            I doubt a judge would impose one to take their vacation in pay or banked time. It is short term. Perhaps he can take it next year when back to work. They would require him/her to pay according to their disability pay. That vacation/banked time is between the employer and employee. I have a job whereby we have a lot of banked time/vacation and other time. The rules are strict when you can cash it out and how much can be carried over so he will have to cash it out at some point and added to their income. I would think the cost to go to court to get that extra money exceeds what you would get in return. Depends on his pay etc. 4 weeks of my holidays cashed out would net me 6k...Add that to my annual income of disability pay and it isn't much. However, not paying at all is jerk move unless they are 50/50 and his pay is equal to your wife's now so no offset required.

            Comment

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