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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #21  
Old 02-04-2021, 12:28 PM
rockscan rockscan is offline
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Originally Posted by arbortrail22 View Post
If an ex hasn't provided medical reasons for not working as a justification leading into mediation, then could they bring this up later in court? At the same time showing a few applications on Indeed, monster, etc. Is is okay for one parent just not to work?

Go through the Drygala case and also look through some other cases on canlii. There was also a poster on here who had part time income imputed to their ex wife. The onus is on the person claiming underemployment to prove they are purposely unemployed.

There will be some details on judges reasons for imputing income in those details.


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  #22  
Old 02-04-2021, 12:55 PM
StillPaying StillPaying is offline
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Originally Posted by rockscan View Post
The onus is on the person claiming underemployment to prove they are purposely unemployed.
You're either unemployed or underemployed, not both.

Arbortrail22 and his ex both agree ex is not working. Proving over. Now it's on ex to prove why, not Arbortail22 and he certainly shouldn't be asking for proof.
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  #23  
Old 02-04-2021, 03:05 PM
rockscan rockscan is offline
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Originally Posted by StillPaying View Post
You're either unemployed or underemployed, not both.

Arbortrail22 and his ex both agree ex is not working. Proving over. Now it's on ex to prove why, not Arbortail22 and he certainly shouldn't be asking for proof.

While its great you make that observation it isnt how the court looks at it. Arbortrail argues his ex is purposely unemployed while his ex argues different. A court looks at the argument that it is purposeful or not. The onus is on arbortrail to prove his ex is purposely not working. I make the statement I do in case someone else stumbles upon this and wonders the same. Underemployment is employed in a job below their abilities and unemployed is not working at all. Regardless of which it is, the onus still remains on the person claiming it and the courts hold to the Drygala decision.


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  #24  
Old 02-04-2021, 03:30 PM
Alpinist Alpinist is offline
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How would one go about proving their spouse is unemployed or underemployed? Seems like that would be very hard to prove or find out.
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  #25  
Old 02-04-2021, 03:35 PM
StillPaying StillPaying is offline
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Originally Posted by rockscan View Post
While its great you make that observation it isn�t how the court looks at it.
They did at my trial when I used Drygala to impute my ex a full time salary.

Quote:
Arbortrail argues his ex is purposely unemployed while his ex argues different. A court looks at the argument that it is purposeful or not. The onus is on arbortrail to prove his ex is purposely not working.
You're mixing it up. Purposely not working? They're either working or they are not.

Arbortrail's onus is to show ex isn't working. That is simple.
Then onus switches to ex to prove why they're not working. Arbortrail will rebut this, but it's on ex to prove.
Finally, onus is on Arbortrail to suggest what the proper amount should be to impute.

Quote:
I make the statement I do in case someone else stumbles upon this and wonders the same. Underemployment is employed in a job below their abilities and unemployed is not working at all.
Regardless of which it is, the onus still remains on the person claiming it and the courts hold to the Drygala decision.
Not sure what that means, but I'm glad we agree under/unemployment are 2 different things.

Another glance at the case wouldn't hurt. It's a 3 part test. Step 1 and 3 are easier. The biggest onus for proof is step 2. The person not working must prove why, not the person looking to impute.

Again, start with the premise that all parents must support their kids. If you don't want to, prove why, or court will impute you an income.
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  #26  
Old 02-04-2021, 03:42 PM
rockscan rockscan is offline
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Originally Posted by StillPaying View Post
They did at my trial when I used Drygala to impute my ex a full time salary.



You're mixing it up. Purposely not working? They're either working or they are not.

Arbortrail's onus is to show ex isn't working. That is simple.
Then onus switches to ex to prove why they're not working. Arbortrail will rebut this, but it's on ex to prove.
Finally, onus is on Arbortrail to suggest what the proper amount should be to impute.



Not sure what that means, but I'm glad we agree under/unemployment are 2 different things.

Another glance at the case wouldn't hurt. It's a 3 part test. Step 1 and 3 are easier. The biggest onus for proof is step 2. The person not working must prove why, not the person looking to impute.

Again, start with the premise that all parents must support their kids. If you don't want to, prove why, or court will impute you an income.

In my husbands case, his ex admitted his field of employment had periods of unemployment but she still claimed he was purposely unemployed and underemployed based on where he chose to live. In his response he provided a pile of information regarding his efforts to find employment. The judge advised her that the onus was on her to prove he was purposely underemployed (mentioned drygala) and also pointed out that the bulk of evidence provided closed the matter entirely.


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  #27  
Old 02-04-2021, 03:42 PM
StillPaying StillPaying is offline
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Originally Posted by Alpinist View Post
How would one go about proving their spouse is unemployed or underemployed? Seems like that would be very hard to prove or find out.
You ask them straight up, as well as for their Financials.

They're either not working (unemployed), or not making the full time income you believe they should(underemployed). Underemployed may need a lawyer's help but unemployed is easy to prove.
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  #28  
Old 02-04-2021, 03:47 PM
StillPaying StillPaying is offline
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Originally Posted by rockscan View Post
In my husbands case...
Obviously this was not at trial. It's a much different beast.
But you're definitely mixed up.
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  #29  
Old 02-04-2021, 04:53 PM
rockscan rockscan is offline
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No it was a motion for disclosure to gather documents to prove his underemployment/unemployment.


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  #30  
Old 02-04-2021, 04:59 PM
arbortrail22 arbortrail22 is offline
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Of the 7 years since separation, the ex has only worked 18 months at $65K corporate job (1st job 4 years after separation). And now doesn't work again and is seeking more spousal/child and in arrears given my income increase. No disclosure from either of us... thought my increase theoretically offset her not having a job and didn't want to go through the process. 9.5 year marriage. Just very frustrating. Funny is that with an imputed income of 65k the ex would actually owe me in arrears.
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