Case reference: Drygala v. Pauli, 2002 CanLII 41868 (ON CA)
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During the marriage, the respondent earned $21 per hour as a certified tool and die maker. After the parties separated, the respondent did not look for any employment. He was on the payroll of his stepfather’s company for the years 1997 to 2000, but substantial portions of his income were retained by the company to reduce his alleged indebtedness. In 2000, the respondent enrolled as a full-time student in a Bachelor of Arts program with the goal of becoming an elementary school teacher. He was substantially supported by his mother. The parties were granted a divorce in 2001 and the respondent was ordered to pay child support for the parties’ one child in the amount of $266 per month based on an imputed annual income of $30,000. In imputing income to the respondent, the trial judge relied on s. 19(1)(a) of the Child Support Guidelines. Child support was ordered retroactive to June 15, 1998, the date of the original petition for divorce. The respondent appealed. Except for $6,000 of child support arrears paid into court to avoid a stay of the appeal, he paid no child support.
Held, the appeal should be allowed in part.
Section 19(1)(a) of the Child Support Guidelines permits a court to impute income to a spouse if it considers it appropriate in the circumstances, which circumstances include “the parent or spouse is intentionally under-employed or unemployed.” There is no need to find a specific intent to evade child support obligations before income can be imputed. Read in context and given its ordinary meaning, “intentionally” in s. 19(1)(a) means a voluntary act. The parent required to pay is intentionally under-employed if that parent chooses to earn less than he or she is capable of earning. That parent is intentionally unemployed when he or she chooses not to work when capable of earning an income. There is no requirement of bad faith in s. 19(1)(a), nor is there language suggestive of such a requirement. The trial judge found that the respondent intentionally chose under-employment. While it might more properly be characterized as unemployment rather than under- employment, there was no doubt as to the correctness of the finding that the respondent acted “intentionally” within the meaning of s. 19(1)(a) when he chose to attend university rather than to work.
An exception is made under s. 19(1)(a) of the Guidelines where the under-employment or unemployment is required by the reasonable educational needs of the parent or spouse. The trial judge must first determine whether the educational needs are reasonable. A spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. Section 19(1)(a) also dictates that the trial judge determine what is required by virtue of a spouse’s educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. Inferentially, the trial judge in this case found that the respondent’s educational goals were reasonable. He appeared also to have determined that the respondent’s intentional under-employment was required for that period in which he was on academic probation. That determination had implications for the period in which child support could be awarded.
Section 19 of the Guidelines is not an invitation to the court to select arbitrarily an amount as imputed income. The trial judge imputed income to the respondent on the basis of part-time employment. Having decided that the appropriate basis upon which to impute income was part-time employment, there was an obligation [page713] upon the trial judge to give some indication of how he arrived at the figure of $30,000. While significant deference must be given to trial judges in relation to support orders, a consideration of the respondent’s prior earnings history demonstrated that the figure of $30,000 was unreasonable for part-time employment given that he seldom earned that much when working full time. It was reasonable to assume that the respondent could work 50 per cent of a normal work week while attending school. He earned $33,000 in 1996. Child support should be ordered based on an imputed income of $16,500.
The trial judge did not err in awarding retroactive child support. However, he erred in two ways when making the award retroactive to June 15, 1998. As the trial judge found that the respondent cared for the child from February to September 1998 and that his care for her during that period satisfied his child support obligations, the commencement date should be September 1, 1998. Moreover, since the trial judge found that the respondent was required by the university to carry a full course load for a period of time in order to prove himself academically, it was an error to impute income to him for that period. The retroactive award should be varied to exclude the period from January 1, 1999 to November 30, 1999.
*source: Canlii
