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  • Burden of Proof

    Does anyone know how one can successfully prove to the court that full time, low skill, min wage jobs exist? Apparently, printing off job bank ads and submitting them to the court is not sufficient.

  • #2
    Originally posted by Teenwolf View Post
    Does anyone know how one can successfully prove to the court that full time, low skill, min wage jobs exist? Apparently, printing off job bank ads and submitting them to the court is not sufficient.
    Could you maybe contact EI, maybe they could confirm this in writing for you?

    Comment


    • #3
      Maybe go to one of those temp agencies and get them to write something up for you?? Other then that, I am stumped.

      Comment


      • #4
        Which industries employ the most people?

        May give an idea of it?However each province is different so perhaps something from your neck of the woods?Government sponsored employment agencies may be of more service.

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        • #5
          Thanks for the input. I was thinking along the lines of getting some info from HRDC too, but I'm not sure what info they would produce. Does anyone have any experience with this?

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          • #6
            HRDC has a website and I believe there is a job posting site. All you gotta do is hit "print."

            Comment


            • #7
              Originally posted by arabian View Post
              HRDC has a website and I believe there is a job posting site. All you gotta do is hit "print."
              We tried that, but the judge from the pre-trial conference stated that stuff from the internet isn't proof.

              Comment


              • #8
                go into your local HRDC office then and photocopy the job ads. I believe they do not charge for using the photocopy. You could go to your local hotels and get job listings for chamber maids and servers from their Personnel/Human Resource offices.

                Comment


                • #9
                  Re judge saying that printing the job ads is not proof. All the ad can prove is that the ad existed. It doesn't prove likely what you want it to, that your ex can get a job.

                  This is opinion evidence and opinion evidence can only be given by an expert. Mere mortals can only testify as to what they saw or did. They can testify as to what they heard but only if you are trying to prove that the statement made was made not to prove the contents. i.e. you can testify Ï heard him calling her a slut " If the issue is whether or not he is abusive but not if the issue is whether she is promiscuous.

                  A judge might be willing to take judicial notice of the fact that there are some low skill minimum wage jobs. Although there are in fact almost no full time low skill jobs in most of Ontario.

                  To prove the state of the job market in your area you would need an expert on the job market to prepare an expert report, serve this on the other side and call the witness at the trial

                  But I really doubt that is the issue. In all markets there are some jobs the question is whether the person in question can practically get one and also whether that is really what the issue is in your case.

                  At case conferences Judges tend not to explain all of their thought processes.

                  To help what we need to know is why you need to prove this. Most likely reason is because you want to stop or reduce spousal support. If you had a long marriage and your ex is older the judge does not care that there are minimum wage jobs in the area -- likely.

                  So what are your facts. Are there children, How long were you togetherl How long have you been paying support. How long since the spouse worked. Does she have heath issues. How much do you make How long have you been paying support.

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                  • #10
                    Thanks OldLawyer. To elaborate, the case in question is for my GF's court application to impute income to the biological father for the purposes of child support. He hasn't paid CS since 2006 and hasn't been required to since 2008 due to his income being below the CS income threshold. His income went from 21K in 2007 to less than 6K every year since. His income for 2011 was $3,400. He has admitted to being underemployed, but he has cited health needs as justification. He has been prompted by the court to submit a medical expert opinion in regard to his inability to work, but he confirmed at the court conference last week that he intends to rely on his own testimony.

                    Based on the case law I've read, I don't think he will be successful with his health claims. He also has some pending criminal charges coming up in 2013, and he's attempting to use this as a reason for not paying any CS.

                    The conference judge told the GF that she supports her position morally, but the judge can't fix the personality flaws of the NCP. She said that there is no evidence to support imputing income, and the job ads submitted are not proof that min wage full time jobs exist.

                    Late 2007, the NCP stated in court that he wouldn't pay CS, and then his income dropped off the face of the earth starting in early 2008. Based on the entirety of the case, I'm not really sure what else the GF can do to prove that the NCP is intentionally underemployed. The judge was adament about proving that jobs existed, but we have no idea how to do this.
                    Last edited by Teenwolf; 10-14-2012, 12:14 AM.

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                    • #11
                      Well, this business of dealing drugs....

                      I know you can impute income to self-employed people who under-report their income, and to people who are under-employed because they have someone supporting them (family). Are there any precedents for imputing income to people who don't report their income because it is illegal? Isn't there something about estimating income based on visible expenses? If he is unemployed due to health needs, shouldn't he have a disability pension of some sort? Can CS be calculated on that if the health needs are true, or be found intentionally unemployed if they are not?

                      Comment


                      • #12
                        Originally posted by Rioe View Post
                        Well, this business of dealing drugs....

                        I know you can impute income to self-employed people who under-report their income, and to people who are under-employed because they have someone supporting them (family). Are there any precedents for imputing income to people who don't report their income because it is illegal?
                        I don't believe so. The intent is not to impute based on illegal income though; the intent is to impute based on his capacity to earn: min wage at full time hours. He has worked over the last 5 years, but mostly very part time. Prior to 2008, he was somewhat "normal" and worked mostly full time.

                        Originally posted by Rioe View Post
                        If he is unemployed due to health needs, shouldn't he have a disability pension of some sort? Can CS be calculated on that if the health needs are true, or be found intentionally unemployed if they are not?
                        Yes, one would expect a disabled person to collect some form of disability, but he does not. Instead, he has been working as a bar bouncer for the last 4 years, prior to being fired last Spring.

                        He actually did work full time for the last two months or so, and made more than min wage, but he conveniently lost that job 3 days prior to the lastest court conference. I'm not sure how a person who can't work full time due to health needs ends up working full time for a couple of months.

                        I'm starting to believe that the court sees him as unemployable and don't want to impute income to him. I certainly wouldn't hire him.
                        Last edited by Teenwolf; 10-14-2012, 01:26 AM.

                        Comment


                        • #13
                          I would take a different route.

                          But first I see your frustration because the case conference judge is inconsistent. On one hand she says that it is his character defects that keep him from working. And on the other that you have to prove there are jobs in the area.

                          If the judge is sending the mother out to prove there are jobs in this world she, the judge, is just being a bureaucrat giving the mother the run around. The judge can take judicial notice of the fact that there is gravity, that night follows day and that jobs exist.

                          Why not take the approach that he has income that is not disclosed. Judges are more likely to hang their hat on this.

                          For example when the guy says I only have $3500 in income but clearly spends $20,000 a year then he has 17000 in untaxed income which can be grossed up by the Supportmate program to a higher amount. Judges find it easier often to say he clearly does have income and order support based on that. (even when it is not all that likely that the income really exists)

                          My first goal would be to prove that he spends more than $3500 a year.

                          The man has to eat, he must have a place to live, does he have a car?

                          He is obligated to produce financial statements, do his declared expenses exceed his alleged income???

                          Does he have credit cards, you can require him to provide these.

                          Does he have a bank account, you can ask for a copy of his bank statements.

                          How is he paying his legal fees for his criminal charges.

                          If he does not have a car, credit cards or bank accounts and is for example living with and supported by parents a possibility would be to
                          stretch the envelope and argue that the money his parents are giving him should be treated as income. This would be a stretch of the law.

                          However your girlfriend has to keep in mind that if the father does not have a conventional employer there is nothing the FRO can garnish. The FRO can not garnish drug customers for example.

                          But if he has a driver's licence they can cancel this if he does not pay but if he doesn't drive and doesn't have a real job they are not going to be able to collect.

                          (If he does have a car clearly makes more than $3500 a year)

                          There is another way for you to look at this though. If he is not taking an interest in the child then you and your girlfriend are free to go on with your life without being bothered by the deadbeat. For sure if he is payng support he will continue to be a bother.

                          If at some time in the future he thinks he is in the clear and gets a job she can claim child support then

                          The judge does have a bit of a point. Family law does not exist to reform people. If the father is a layabout drunk or criminal the family courts can not reform him.

                          Women are determined to reform their men. If they can't and move on then they want the court to do it. Sometimes it might be better to just be grateful the deadbeat is out of her life and move on. If he later gets his life together she can revisit the situation.
                          Last edited by Old Lawyer; 10-14-2012, 02:34 AM. Reason: see a confusing typo I made

                          Comment


                          • #14
                            I'm just perplexed as to why the judge would give a single mother the runaround, when all the mother is trying to do is get some child support for the child. She hasn't seen any for 6 years, and the court conference seemed like an episode of Judge Judy. And the deadbeat didn't take much of the heat.

                            Judical notice didn't seem like something the judge wanted to undertake. She was adament about proving that min wage jobs exist. I was thinking to myself WTF?

                            The different route idea sounds reasonable, but this guy is willing to avoid CS at all costs. He has a car, but he claims that his mother owns it. We have Facebook screenshots of his car where he said it was his, but once again, the judge won't accept anything from the internet. He lives with his mother, so he has no expenses. Prior to living with the mother, he lived with his girlfriend's parents, where he claimed to have earned his keep by working around the house. He was booted out of there after their house was raided by police and they seized some drugs and cash.

                            Having declared bankruptcy about 5 years ago, he has no debt and no credit cards.

                            I agree that it will be difficult to garnish anything from him, but he does get GST cheques and he gets decent income tax returns due to the low income working tax benefit. Last year that stuff totaled about $1,600, which is better than nothing.

                            The funny thing about him is that he does take an interest in his child. He always takes the child during his access; he just doesn't want to pay for anything.

                            I was a bit taken back by the conference judge's statements because they don't tie into any case law I've read, and I've read many case law in regard to imputing income. The idea behind imputing his income is to instil some accountability on him; not to reform him. He currently has a order that suspended CS obligations, which is almost 5 years old. He will likely keep his income below the CS threshold forever, but he might smarten up a little if the court tells him that he will pay CS on 20K whether he earns it or not.
                            Last edited by Teenwolf; 10-14-2012, 03:07 AM.

                            Comment


                            • #15
                              Your view of the judge as Judge Judy does not surprise me. That is why I am involved on this site. The use of case conferences has allowed judges,to create literally palm tree justice where judges feel free to just impose their personal views without reference to law.

                              Generally their main focus seems to pounce on the apparent weakest person in the room to discourage them from continuing to proceed in order to clear the case.

                              The reason why I got involved in this site was to get a feel as to what people who are unrepresented are saying about the courts.

                              I was never primarily a litigator (and therefore not an expert on evidence) but judges seem to just make things up as they go along today

                              If he has denied he has a car and if he has posted it to his Facebook page as a picture of a car which he says is his car then it is admissible as an admission against interest. The judge is wrong.

                              And it can certainly be used to cross examine him at trial (things can be used to cross examine before they are admitted into evidence)


                              People are using Facebook entries all the time in family court. At a recent conference a family court judge from Toronto said that she admits Face book information at least once a week. The person who printed it would have to introduce it.

                              To get this information in at this point she could do a Request to Admit. Look at this form. The first part allow her to insert facts. such as that he has exclusive use of such and such a car which is registered in his mother's name. In another line she can say that he pays the insurance and gas for this car.

                              There i a second part that allows attaching documents to be admitted as genuine documents. A copy of his Facebook page could be added there.

                              He has 20 day to respond and if he doesn't it is deemed to be true (and the document deemed to be an authentic document)

                              Traditional judges like the Requests to Admit because they reduce the time of trials. The case conference judges don't like them -- as they do not want to get overly concerned about facts and law and don't care much about evidence other than to discourage people from proceeding by pointing out that the person might not know the law of evidence.

                              The mother can also take a picture of the car when he comes to picTk up the child.

                              Ask him to disclose the insurance policy for the car he drives. If it is in his mother's name it must show him as the driver.

                              She can put in her next brief that she is going to call his mother as a witness at the trial to establish that she doesn't pay for the gas and insurance for the car. If the judge says that the mother is not going to testify against her son she can just say well she (your girlfriend) knows his mother to be honest and not likely to perjure her self. (even though it is true that she might lie for her son. If we are going to assume that everyone lies all the time then why are we giving any credibility to anything that the father is saying at all.

                              I am focusing on the car as an example but also because it is very clear that with the cost of gas and insurance a person who earns just $3500 a year can not own a car.

                              If he has drug charges against him this is open to the public. Obtain information on this and claim that he has illegal income. There are cases to say that illegal income is still income.

                              Re proving the jobs, some trial judges were slapped down by the C of A for imputing significant income to fathers based on flimsy evidence. Say the guy had a trade that paid $40 an hour and the mother would produce an ad for someone in his trade. That doesn't prove he would get the job if he applied.


                              But this one is going overboard. However I would focus on the lifestyle. He can not keep a car on the road for $3500 a year.

                              I do not think going to the trouble of getting an expert to prove there are minimum wage jobs helps her as this still does not prove he can get them. I think focusing on showing he must have a source of income might work better.

                              But if the judge is going to insist on this why not find a friend who works in a company that hires from time to time and say they are going to testify. This would not need to be qualified as opinion evidence it is straight fact, this company hires people from time to time. When the judge says but that doesn't prove he would get the job this will force the judge to focus a little more on the true issue

                              While it is just semantics you have to avoid the line of thought that imputing income would instil accountability. This is the wrong approach to take. Again the purpose of the court is not to instill accountability -- that is the reforming logic. Judges do see a lot of this logic in a day and perhaps rebel against it. People come and say this is what a responsible person would do so make him or her do it.

                              Child support is to be based on actual income. Imputing is a back up and is used in limited circumstances. But actual income is not just what he says it is. or just what his income tax form says.

                              Comment

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