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Parents have an obligation to financially support the children

Divorced parents are required to maintain a consistent level of income to support the family and could face financial consequences if a court finds that either party is intentionally underemployed, says Toronto family lawyer Carolina Paterson.

“There's an expectation placed upon separating families that you maximize your income to support the family to a level commensurate with the standards experienced during the marriage,” explains Paterson, an associate with Fogelman Law. “You both have an obligation to support your children to the best of your ability.”

These days, people no longer stay in the same job for their entire working lives and often change employment several times, but there is an expectation in society reflected by the courts that parents earn a certain or consistent level to care for their family, she tells AdvocateDaily.com.

When determining what the support payments should be, the court will want to know why an appropriate earning level hasn’t been maintained during or after the divorce, Paterson says, adding that part of the process will involve exploring whether the individual is "intentionally" underemployed.

The court will also examine whether income is being diverted and if the individual has property that is not generating returns that would otherwise be used for income and support purposes, she says.

The Ontario Court of Appeal (OCA) recently dealt with the issue in a case involving a couple who decided together after the birth of their second child in 2004 that the wife would leave her teaching job to care for the children.

When they separated several years later, the children were teenagers and she had started earning a modest income through a child play centre she had launched while raising the kids, Paterson says, noting that in the interim, the husband had lost his job as a sports show editor.

At trial, the husband was ordered to pay retroactive child and spousal support based on his annual income up until his termination and thereafter on an imputed income of $70,000.00, she says.

The man appealed the decision, arguing that his former wife's income should be imputed in an amount equal to the salary she had earned as a teacher, Paterson says.

The appeal court agreed.

"There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment,” wrote Justice Paul Rouleau. “The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed.”

The OCA found that by earning $15,000 per year at the play centre rather than the more than $70,000 per year she would have earned if she returned to teaching, the wife was intentionally underemployed, Paterson says.

“The appeal court ultimately decided to impute an income of $70,000 to both parties so that neither owed spousal or child support,” she says.

Paterson says the case is an instructional example for family lawyers.

“Obviously, no one wants income imputed to them, it has to be within reason,” Paterson says.

“But there is a basis in law that once you’re the primary earner, there’s an expectation that you have to provide support to the children, especially because of the double aspect involving the arguments made between the wife’s employment and underemployment and the husband having actually lost his employment.” 

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