one story of many out there

[fieldgrey]

I may test credibility or sympathy with my situation - thanks for taking the time to read this, and any insight you offer.

The trial has been set down for minimum 10 days due to 'complexity' of situation. I'll spare the essay here. We are both SRL, although she had council until she ran out of credit card room last fall. The relationship ended 3 years ago, after 15 years together. The initial support agreement done 2.5 years ago was based on a very high income (250k+) - her income was low. I had no problem with following SSAG at about 30% - that still isn't an issue for me. I chose to separate and I'll take my lumps. What is an issue is that since the separation agreement was done my income has been hammered downward, then was on unemployment for a short while and have picked my income back up to about 1/2 previous.

I am dealing with a case of trying to adjust spousal down (no kids BTW) and getting into a tough territory - the reason for so many days for trial.

You'll have to trust me on this: there is no hidden income, no deferred income/options, and no pushing income into expenses or other ways to hide income. My salary was cut by the company when its business collapsed, as was the salary of all other execs in the company. I then had a falling out with the CEO and had to move on. Did I mention I'm suing the company for unpaid wages too!

So, as I roll up to trial next month I am facing down imputation of income - which is what my ex wants. She is backing her claims by suggesting I have forged employment agreements and employers have colluded with me. It's a mess, and will be a parade of witnesses.

What I am looking for guidance on is finding case history for trial where someone has successfully argued against imputation due to economic circumstances. The trial management judge made it very clear that the mountain for me to climb is very high. But executive jobs in my industry do not grow on trees.

I've searched canlii and I'm coming up empty.

Thoughts and suggestions on case history welcome!

[Cobourg]

<O</O
Fieldgrey,
My ex wanted to impute income to me.
I too had my salary reduced due to economic downturns and did not receive a bonus for a few years.
My income was not as high as your but I successfully defeated the claim for imputing income.
Look at Drygala v. Pauli 2002 CanLII 41868 (ON C.A.), (2002), 29 R.F.L. (5th) 293 (C.A.)
It is a leading case on the imputation of income. Although it dealt with imputation for child support purposes, it is equally applicable to the determination of income for spousal support purposes as well.
In Drygala, Justice Gillese held that a court considering a request to impute income to a spouse must consider the following three questions
I. Is the spouse intentionally under-employed or unemployed?
II. If so, is the intentional under-employment or unemployment required by virtue of her reasonable educational needs?
III. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
In Drygala v. Paili, 2002 CanLII 41868 (ON C.A), paragraph 45 says
Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence.


Also check out the following cases. I am not sure how well they match your circumstances, but they may give you some insight.
Thomas v. Thomas, 2003 CanLII 64346 (ON S.C.) 2003-12-22 (Imputing Income)
Bergeron v. Bergeron, 1999 CanLII 14955 (ON S.C.) 1999-08-20 (Imputing Income)
Saunders - Roberts v. Roberts, 2002 NWTSC 11 (CanLII) 2002-02-14 (Imputing Income)
Hanson v. Hanson, 1999 CanLII 6307 (BC S.C.) 1999-10-15 (Income Capacity)
Good luck.<O</O

[fieldgrey]

Very helpful, thank you!

FG