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Can income be imputed where a payor spouse is in jail?

By Lisa Gelman

An Ontario court recently explored whether interim child support should be ordered when the payor spouse was incarcerated on the basis of imputing income to the jailed spouse.

The parties’ relationship

The parties separated sometime in the first half of 2017, after approximately five years together. They had never married but had two daughters, aged two and five. Both children lived with their mother after the separation. The father had regular access, and in August 2017 began paying child support of $1,000 a month.

The father self-disclosed that he had unspecified “mental health issues” for which he had been attending counselling. He further acknowledged that he was having a difficult time coming to terms with the end of the relationship and believed that the mother was attempting to remove him from their children’s lives.

The assault

The mother claims that in the early morning hours of July 8, 2018, the father entered her bedroom and assaulted her new partner with a baseball bat before throwing both her and the partner down the stairs. The father was arrested and charged with numerous offences. He was denied bail and remained in jail. If convicted, he will likely spend a minimum of two years in jail.

Child support

The mother filed a motion seeking, among other things, interim child support and a proportionate sharing of s. 7 expenses.

The mother noted that she appreciates the fact that the father’s incarceration would affect his ability to earn income, but wanted an income to be imputed to him, and that arrears would accumulate while he was away.

In response, the father acknowledged his support obligation but argued that not only would he have no income while incarcerated, but that he also has no real assets and a negative net worth due to various debts. He further argued that creating a significant child support debt to face upon release could “bury him financially.”

The law

Since the parties were not married, interim child support was governed by s.34(1) and 33 of the Family Law Act and must conform with the Child Support Guidelines.

Support payments must be regular and timely and must be based on the most current income information available.

Since the father has no income by virtue of being incarcerated, the court may impute an amount that it considers appropriate, per s.19(1) of the Guidelines.

As a general rule, a parent cannot avoid a child support obligation through a self-imposed reduction of income.  In imputing income, the court must consider the following questions:

  1. Is the spouse intentionally under-employed or unemployed?
  2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?
  3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

The mother’s position

The mother’s lawyer argued that there is a line of caselaw in which parents were found to have intentionally unemployed through engaging in reckless behaviour (e.g. drug use, criminal behaviour, etc.) which resulted in a reduction of their earning capacity. In each of these cases, child support was calculated based on prior earnings. Moreover, other cases suggested that incarceration and resulting unemployment was not a sufficient enough reason for a parent being unable to earn income.

The court’s analysis

The motion judge noted that imputation is discretionary, and the ultimate consideration is always reasonableness.

A situation in which a parent’s earning capacity is affected by drugs and/or criminal behaviour is different than a situation in which a parent is incarcerated and therefore cannot earn any income. In the first situation, a parent would still be able to correct their failure to provide support. Where a parent is incarcerated, he or she cannot modify his or her behaviour by finding suitable employment in response to an imputation order.

The motion judge further noted that the order requested by the mother, in this case, would simply create debt, and that:

I am not convinced that there is an absolute rule that the court must always impute income where the payor was working prior to incarceration…[i]n my view it is preferable to have the trial judge, on better evidence and with more up-to-date information, assess what would be reasonable support going back to the date of the incarceration in the [father’s] particular circumstances.

The motion judge went on to say that no order that he would make at the interim stage would “assist to get regular support flowing now.” In addition, if the father was ultimately acquitted, and released relatively quickly, full imputation might indeed be appropriate.

Further, while the court must be mindful of the children’s need for financial support, if the father were to be incarcerated for a long time, the circumstances of everyone involved would have to be “practically and thoughtfully considered” before he is saddled with a very large debt upon release.

The motion judge further noted that a cautious approach is appropriate on temporary motions for child support.

Importantly, the father had also raised mental health issues. In such cases, imputation may not be appropriate where a parent is unable to work as a result.

The decision

The mother’s motion for interim support was ultimately dismissed.

Domestic violence, including domestic violence by a former spouse or partner, is a serious issue and a serious crime. If your spouse/partner or former spouse/partner is violent, you must take all steps necessary to protect your safety and the safety of your children. Focus on your legal issues only after you are safe. Once circumstances allow, victims of domestic violence should seek the advice of a family law lawyer to ensure their rights are protected with respect to issues such as exclusive possession of the family home, child custody and accessproperty division and child support

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