I am a self-represented litigant. For the last three years my ex has not paid the proper amount of support according to our separation agreement. I took out a Motion to Change last January. Rather than pay his arrears he is trying to impute my income retroactively to decrease or nullify the amount he owes. I was working part-time 3 years ago (2 days a week) and am now working 4 days a week. My income has doubled since our separation. There are no full-time positions available where I work (hospital). I have not applied to other cities as I did not want my children to be in daycare for such long days. My kids are now old enough to not require daycare. I love my job and its proximity to where I work and have not looked elsewhere (which I understand now is not to my benefit) What does my ex need to justify imputation? How easy will this be to get retroactively? What does "intentionally underemployed" mean and what sort of information might be helpful in my pleading. Thanks so much for any suggestions or advice! I have a settlement conference in a couple weeks and then a long motion on this issue (and several others)
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Imputation of Income: advice needed.
Last edited by annapurna66; 08-17-2013, 12:35 AM. Reason: forgot to add that support owed is spousal not childTags: None
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Originally posted by annapurna66 View PostI am a self-represented litigant. For the last three years my ex has not paid the proper amount of support according to our separation agreement. I took out a Motion to Change last January. Rather than pay his arrears he is trying to impute my income retroactively to decrease or nullify the amount he owes. I was working part-time 3 years ago (2 days a week) and am now working 4 days a week. My income has doubled since our separation. There are no full-time positions available where I work (hospital). I have not applied to other cities as I did not want my children to be in daycare for such long days. My kids are now old enough to not require daycare. I love my job and its proximity to where I work and have not looked elsewhere (which I understand now is not to my benefit) What does my ex need to justify imputation? How easy will this be to get retroactively? What does "intentionally underemployed" mean and what sort of information might be helpful in my pleading. Thanks so much for any suggestions or advice! I have a settlement conference in a couple weeks and then a long motion on this issue (and several others)
Your exs reasoning is that if the kids do not require daycare then you could and should be working 40 hour work weeks. I am pretty sure intentionally underemployed is not working the 40 hours but instead choosing to work part time.
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anapurna66 I don't think you can have it both ways. On one hand your nailing your ex for not paying you enough support. On the other hand you are refusing to work full time. Yes your ex can certainly impute you with an amount equivalent to full time employment. All he has to do is show you are capable and able to work full time and then "Bob's your uncle."
The difference between working 4 days a week to 5 days a week equates to approx. 80.00/day for a minimum wage individual or 320.00/month. I'm not sure how drastically that will effect your support payment but you had better start calculating this for the future.
In my opinion, the only way you would be able to offer up any opposition would be to either prove you did approach your employer for additional hours and/or show that you looked for alternative employment. From your post I am inclined to assume you did neither.
I would seriously look at how you can get out of this one. If you persist you will could very well be looking at a costs award if your ex is represented by counsel. If you live in a small community where jobs are scarce, the judge may go easier on you.
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Originally posted by annapurna66 View PostWhat does my ex need to justify imputation? How easy will this be to get retroactively? What does "intentionally underemployed" mean and what sort of information might be helpful in my pleading.
Duffy v. Duffy, 2009 NLCA 48
1. The fundamental obligation of a parent to support his or her children
takes precedence over the parent's own interests and choices.
2. A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children.
3. A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.
4. Imputing income to a parent on the basis that the parent is "intentionally under-employed or unemployed" does not incorporate a requirement for proof of bad faith. "Intentionally" in this context clarifies that the provision does not apply to situations beyond the parent's control.
5. The determination to impute income is discretionary, as the court
considers appropriate in the circumstances.
6. Where a parent is intentionally under-employed or unemployed, the
court may exercise its discretion not to impute income where that parent
establishes the reasonableness of his or her decision.
7. A parent will not be excused from his or her child support obligations in
furtherance of unrealistic or unproductive career aspirations or interests.
Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.
8. A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.
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Originally posted by annapurna66 View PostWhat does my ex need to justify imputation? How easy will this be to get retroactively? What does "intentionally underemployed" mean and what sort of information might be helpful in my pleading.
In this case, the Ontario Court of Appeal made it clear that it is not necessary for a court to find that a parent has acted in bad faith before it has the discretion to impute income. The word “intentionally” used in section 19 means “voluntarily.” In other words, the court need not find that a parent is deliberately intending to evade his support obligations before income can be imputed. Parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed.
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Thanks nogoingback, Drygali vs Pauli is exactly what I was about to post, and you made my point.
To anapurna, you are voluntarily underemployed; that does not mean it is "blameworthy." It just means you have chosen to do this voluntarily. No one has forced you, and there is not a situation where you can show that you cannot find work.
The fact that there are no full-time positions where you work mitigates your situation somewhat, but you should be prepared to go to human resources at your hospital, enquire about additional hours, and ask for a response in writing stating that no hours are available at this time. Explain your circumstance to them. Human resources staff are very experienced and understanding; you are not the only person in the world with divorce issue. You should ask them to include in a letter that you have enquired about additional hours and that you would be qualified if a full-time position became available.
If you can't show that you are making an effort, then you are showing that you are NOT making an effort. The court will see it that way. I am not taking sides, I am explaining how you are vulnerable.
To standing on the sidelines, what I took from her post was that the children would have needed after school care in the past, but that they no longer would need that. She should have used a semi-colon there.
To Arabian, I don't know of any hospitals that have minimum wage postions. Most hospital positions would start at about $25/hr. A judge would look at what she is "historically" capable of earning per hour, and apply that to 40 hours per week.
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Cafeteria staff are contracted out. They aren't hospital employees. (rolls eyes) They don't earn minimum wage in hospitals anyway. (rolls eyes.) Maintainence workers are unionized and earn at least $25, along with orderlies, etc. (rolls eyes.) Of course you don't know. (Rolls eyes.) You don't work in a hospital. (rolls eyes.)
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Total and complete crapshoot in my experience. I'm trying to fix a failed attempt to impute income on my ex wife now.
In my experience, it boils down to what the judge wants to do at the time. Imputation law is so all over the place it's extremely difficult to make it stick properly, especially if one party is hiding income.
In your case, if 4 days/week is standard for the job you were in, and you had the job prior to, or shortly after separation, it would make it harder for the ex to argue it.
As has been suggested, simply go to HR, inquire about more hours/written documentation and/or get proof that the position you are in has a standard of 4 days/week.
Honestly, if you are making more than full time hours @ min. wage, you can argue that working this job is more beneficial financially than doing so.
It's not clear if you are working 20 hours, 30 hours or what.
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