Section 19.1 of the Federal Child Support Guidelines allow a court to “impute” or attribute income to a party for a number of reasons, including if they are deliberately under-employed or unemployed. Justice Rempel of the Court of Queen’s Bench of Manitoba considered one of these cases recently in Kowbel v Kowbel.
When the parties separated in April 2011, the father was working as a mechanic with CN Railway earning $62,145 a year. At a case conference in November 2011, the parties agreed he would pay child support of $1,133 per month.
Around March or April of 2012 the father unilaterally terminated his job with the railway and took a job as a mechanic with a private company. It wasn’t until June 2012 that he notified the mother of the change, and indicated that his reduced income of $44,000 a year should reduce his support payments.
Justice Rempel referred to the Court of Appeal of Manitoba decision in Donovan v. Donovan, which was based on the text by Julien and Marilyn Payne (“Child Support Guidelines in Canada“):
- There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is “no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor” (Van Gool v. Van Gool).
- When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations.
- A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment.
- Persistence in unremunerative employment may entitle the court to impute income.
- A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.
- As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.
Justice Rempel indicated that factors 1, 2, and 6 were applicable in this case. He indicated that the onus in demonstrating that the change was reasonable was on the father, and referred to Justice Helper in Steele v Koppanyi,
39 … But the onus was always upon him to establish to the satisfaction of the court that his present employment is reasonable given his work experience, his skills, his health, his age, and his education. This he failed to do.
40 There was no evidence upon which the court could conclude that the husband’s completion of the computer animation course would lead to reasonable employment by him. Additionally, the husband provided no information to the court of the steps he took to secure employment that was comparable to his employment as a commercial painter. He did not explain why he was working as a courier at an income substantially reduced from his 1998 income. The motions judge ought to have imputed income to the husband in accordance with the evidence of his earnings in 1998 and for that part of 1999 when he was employed.
Justice Rempel rejected the father’s evidence for making the change based on spending more time with the kids. He noted that the father failed to introduce any evidence in support of his self-reduction in income, and therefore failed to meet failed the onus that the change was reasonable. Justice Rempel therefore imputed an income to the father of $62,145, and ordered support on that basis.
