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How Does The Court Determine Intentional Under-Employment or Unemployment?

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  • How Does The Court Determine Intentional Under-Employment or Unemployment?

    Does anyone know where I can find information on how the Ontario Family Courts determine whether a person is intentionally under-employed or unemployed?

    I understand that...

    <link href="http://www.e-laws.gov.on.ca/html/laws.css" type="text/css" rel="stylesheet"><!-- TRANSIT - HYPERLINK --><!-- .droit de la famille (Loi sur le) - R&#232;gl. de l'Ont. 391/97. -->19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

    (a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
    <!-- TRANSIT - HYPERLINK --><!-- .droit de la famille (Loi sur le) - R&#232;gl. de l'Ont. 391/97. -->

    However, how does the court determine this?
    Last edited by #1StepMom; 12-19-2009, 02:16 PM.

  • #2
    I don't think there is a hard and fast rule. I had to deal with this a little bit, I am self employed and my ex threw that accusation in along with the kitchen sink, but it was thrown out immediately. (My level of work and expenses has remained constant for years and I was able to increase my workload a bit after separating so I earn a few thousand more now then when married.)

    Your situation is different than mine was, this is something that would have to be shown due to specifics in each case. The onus is on your husband's ex to make a strong case for this based on facts, not accusations. These arguments and facts MUST be disclosed before the trial so that you are able to answer them properly. She can't just write the accusation in and then keep whatever she thinks her proof is secret.

    So at this point if the papers have been filed, you've read them over, or is it not that far along yet?

    From what you have written in other threads, your husband has gotten work, been laid off again, is actively looking for work, so you have a strong argument.

    The ex would have to show that there are jobs available in your area that he is qualified for and he could be doing and isn't. He is not required to switch to a different field, or move to another town, he just has to be looking for a similar job to the one he had.

    If jobs in that field aren't paying as much (due to economy or whatever) you would have to show proof of that, but by showing that you have defended yourself. If there are no jobs, then you should get a statement from an employment agency or head hunter firm, or at least keep a daily journal of jobs you see on Monster.ca and Workopolis etc. Have something to show the judge.

    Unless the ex can come in with copies of dozens of want ads showing full time jobs galore, she can't really show anything to back her claims up.

    Now if your husband is just off work for a few months, the judge may imput some income, on the expectation that he get a job within a few months. You should be prepared for this, the CS won't drop to 0 because he has 0 income. That won't seem fair, but that is how it will go.

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    • #3
      Not sure if this is any help...take a look at the cases that are mentioned in this document.

      http://www.cmcgc.com/oba/free/220/Tab7.pdf

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      • #4
        Mominont, I liked that doc, there were a few things in there that would have shut down my ex if I'd sent it to her months ago. Well, not that she'd have bothered reading it...

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        • #5
          Thanks for posting that document, Mom-in-Ont!

          I really enjoyed reading it. It made me feel sooo much better.

          Especially the parts:

          "There must be an evidentiary basis for imputing income. The onus of proof will be on the party alleging that income should be imputed."

          "Unemployment or underemployment is intential if a parent chooses to earn less than he or she is capable of earning. Conversely, the provision would not apply to situations in which through no fault or neglect of their own, spouses are laid off, terminated, or given reduced hours of work."

          "In determining a spouse's capacity to pay, the court will look to the traditional factors such as age, education, experience, skills and health. The court will also consider such things as the availability of work, the parent's freedom to relocate, and any other obligations that the parent may have."

          "A change of employers may warrant the imputation of income. However, the courts appear to be sensitive to a parent's right to choose meaningful and satisfying work."

          "A spouse may legitimately change careers or change employers if he or she can demonstrate the reasonableness of the change. The courts are mindful of a spouse's right to pursue career options or secure meaningful and satisfying employment. The onus, however, would be on the support payor to demonstrate the reasonableness of the change having regard not only to his or her interests, but also the interests of the children."

          "At the first step, the court would determine whether or not the under-employment or unemployment was 'intentional.' If in the first step it is determined that the under-employment or unemployment is, in fact, intentional, the onus shifts to the support payor to justify the under-employment or unemployment. The reason for the shif in onus, of course, is because the support payor is in command of the facts."

          "In many instances, a spouse's capacity to earn can be equated with his or her former level of income. If, however, that employment is no longer available to the spouse, the prior level of income is not an appropriate standard. Rather, the court must examine all of the circumstances to determine the spouse's capacity to pay."

          Now, if only all of the above were true in all family courts! Again... *fingers crossed!*

          Comment


          • #6
            Well in your husbands case he has been laid off and has always been looking for work.

            In our situation, the ex wife has either gone to school (part-time or full-time), worked part-time, or not at all. In 8 years (or maybe 9 now) she has only worked full time for 6 months. And she is in mid-thirties (with teen kids) with 3 diplomas/degrees and could be working!

            She seems to think that some jobs are beneath her, yet has lived all this time off child support and government hand-outs, which curiously, is not beneath her.

            In reading this document, I think we'd have a good case to impute her an income and get her paying her share of expenses.

            We've been fleeced for far too long.

            Comment

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