The Canadian Bar Association
Family

Exes must prove they aren't under-employed in support disputes

Ex-spouses can’t intentionally change their employment situation to get out of paying child or spousal support, Toronto-area family lawyer Andrew Feldstein tells the Night Side on Newstalk1010.

If a judge believes a support payor or recipient is under-employed, they will “impute” the spouse to a higher income, says Feldstein, principal of Feldstein Family Law Group.

“It’s sort of a fallback position when you’re litigating a case and you’re trying to say somebody is self-employed or you don’t believe what they’re doing,” Feldstein tells host Barb DiGiulio. “You try and advance an argument that they could be doing more and they’re not doing it.

“Usually the argument is made for someone who hasn’t been in the workforce and doesn’t really want to go back to work. A court will say you should be working, you’re intentionally under-employed and we’re going to impute you to a higher income.”

Feldstein comments in reaction to a series of columns written by Christie Blatchford in the National Post that point out some of the more complex family law cases making their way through the system.

In one article, Blatchford writes about a man who ended up paying nearly twice his after-tax monthly income in child and spousal support because a judge deemed him “under-employed.” The father, who earns roughly $65,000 a year and previously owned a business, has attempted to change his support obligations twice by filing motions, the article says.

On the second attempt, a judge refused to order security for costs. But the man’s ex-wife, a teacher who earns around $100,000, appealed the decision, so his case remains in limbo and his support obligations continue.

He now owes more than $500,000 in arrears, despite paying what he can monthly and occasional lump sums,” the article says. His wages are being garnished by the Family Responsibility Office, and he has spent more than $600,000 in lawyers fees to pay for the ongoing legal saga.

“If he prevails, it’s not just should he stop paying spousal support, the second part of it is, what will happen to his retroactive arrears?” Feldstein says.

While the article points to the man’s soaring legal costs, Feldstein says lawyers are not to blame.

“These cases are usually because people want to fight. When people want to resolve cases, they usually can,” he says.

“That means both sides have to come clean as to what they’re making, what’s happening with their business, and there has to be some belief on the other side the other person is telling the truth.”

Feldstein says trust issues and a failure to disclose all financial information can both lead to protracted litigation.

“I’ve had cases where people are high net worth and they can resolve their cases very quickly because they’re being fair with one another. And other cases where people don’t have much money and one or both want to fight about something.”

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