What is the right support amount when a spouse is unemployed or not earning their full potential. Often, claims are made that a parent or spouse quit their job to reduce their support payable or to increase the support they receive.
The Spousal Support Advisory Guidelines and the Federal Child Support Guidelines both allow the court to add income or “impute” income to one or either party for the purposes of calculating support where one or either of the parties is intentionally unemployed or under employed.
The Ontario Court of Appeal in Lavie v. Lavie, 2018 ONCA 10, the court considered whether the trail judge erred by no adding income to the support recipient for the purposes of calculating the amount of support where the support recipient was purposely underemployed.
In Lavie, the support paying father, challenged both the child support and spousal support amounts made by the trial judge, because the judge imputed income to him when he was unemployed, but imputed no income to the wife when she was intentionally underemployed. The wife was a teacher, able to earn $72,000.00 – $86,000.00 per year if she was teaching, but chose to operate a business that produced $15,000.00 per year.
The Court of Appeal found that there was no need to find a specific intent to evade child support obligations or bad faith to impute additional income under the support guidelines. Parents must earn what they are capable of earning. As such, the Court of Appeal found that the trial judge erred in not imputing income to the wife.
The Court then determined what if any should be imputed to both spouses, including for the husband’s unemployment for a time, and the wife’s underemployment. When imputing income the court considered the age, education, experience, skills and health of the parents.
Even though there are fixed calculations regarding support, determining the support amount where one or both of the spouses is unemployed and/or under-employed requires a broad analysis of all of the factors outlined above, as well as the job market, job search efforts and why the party is unemployed or under-employed. It is impossible to look at a single case determine what would occur in your case. Getting legal advice from a lawyer that knows all of your facts and can apply them to the support legislation, support guidelines, and case law is recommended.
If you have questions about spousal support, spousal maintenance, alimony, child support, or imputing income for support purposes, contact Windsor family law lawyers Mary Fox, Tanya McNevin or Thomas MacKay today by calling 519-259-1820. We serve clients in Windsor, Tecumseh, Lasalle, Essex, Leamington, Kingsville, Belle River, Lakeshore, and throughout southern Ontario.