Child support obligations are calculated based on a parent’s income. A parent with no income will not be obliged to pay child support. However, the Federal Child Support Guidelines (http://canlii.ca/t/531vd)prevent a parent from evading their obligations by imputing income where a court finds the parent is intentionally under-employed or intentionally unemployed.

A recent case had to determine whether a father’s unemployment caused by incarceration qualified as “intentional unemployment” and whether he was therefore obliged to make child support payments despite a lack of income.

The Facts

The parties began their relationship in 2013. They had two children and separated in 2017, having never been married. After their separation, the children lived with the mother and the father had regular access to the children. In August 2017, the father began paying $1,000 per month in child support. His 2017 Income Tax Return disclosed an income of approximately $88,000.

At trial, several issues were raised concerning the father’s behaviour. The father himself acknowledged that he suffers from mental health issues and struggled with the end of the relationship. In addition, the mother raised concerns regarding the father’s use of alcohol and drugs.

At the heart of this case, was the father’s alleged criminal actions against the mother and her partner. The mother stated that in the early hours of July 8, 2018, the father entered her bedroom and assaulted her new partner with a baseball bat and threw both her and her partner down the stairs. As a result, the father was arrested and charged with several offences. He was denied bail and remained incarcerated. If convicted, he faces a minimum of two years in jail.

At Issue

The mother brought a motion for interim family law relief, including interim child support.  At issue was whether interim child support should be ordered while the father is incarcerated.

The mother soughton-going child support commencing July 1, 2018 based on the father’s previous year’s earnings. Under the Child Support Guidelines, that amount would be $1,269 per month.

The father acknowledged his support obligation. However, he objected to the amount being claimed because he would have no income while incarcerated and did not have enough assets to cover his debts. In addition, he argued that creating a significant child support debt to face upon his release could bury him financially.

The Decision

As the parties were not married, interim child support is decided under ss. 34(1) and 33 of the Family Law Act, which provides that child support orders be decided in accordance with the Child Support Guidelines.

Support amounts are determined based on the most current income information. While the father no longer received income due to his incarceration, the mother was asking for support under s. 19(1)(a) of the Child Support Guidelines, which provides that the court may impute such amount of income to a parent as it considers appropriate where the parent is intentionally unemployed. In other words, a parent cannot avoid their obligation by intentionally reducing their income.

The judge reviewed some of the case law on the matter. Previous cases have found a parent to be intentionally unemployed by engaging in reckless behaviour that resulted in a reduction of their earning capacity. In those cases the reckless behaviour was drug use and criminal behaviour. The judge also reviewed two cases where imputation was considered for child support purposes while the parent was incarcerated; in both cases child support orders were continued based on previous earnings. The judge stated that in both cases the rationale was that “intentional criminal actions led to the incarceration and resulting unemployment.  Incarceration was not considered to be a sufficient reason for the parent being unable to work.”

However, imputation under the Child Support Guidelines is left to the discretion of the court and the ultimate consideration is reasonableness. The judge found that there was no absolute rule that a court must always impute income where the parent was employed prior to incarceration; each case must be decided on the facts. The judge distinguished this case by stating that “an incarcerated parent cannot modify his or her behaviour by finding suitable employment in response to an imputation order. The order proposed by the [mother] here would simply create debt.”

Finally, the judge found that previous cases had been decided where the parent had already been convicted of a crime and where the support orders were final; in this case, the motion was for interim support and the father had not yet been convicted of a crime. In his opinion, it would be better left to the trial judge to assess what would be reasonable support on better evidence and with more up-to-date information at a later date.

As a result, the mother’s motion was dismissed.

Get Advice

At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (905) 695-1269or toll-free at (877) 275-4792 to book a consultation.