Rodrigues v. De Sousa: Evidence and Imputing Income
In this case, the mother was asking the court to impute an income of $100,000.00 to the father for the purposes of determining temporary child support on a Motion.
According to his income tax returns, the father’s income left him well below the poverty line. However, he was a highly-skilled manager, financial advisor and insurance salesperson with years of experience who paid approximately $3,000.00 per month in expenses, who only applied for one job over the past six years, and who earned $150,000.00 in years prior to separation.
After determining that the father was intentionally underemployed and that he did not disclose his full income, Justice Sherr imputed him an income of $45,000.00.
In determining this amount, Justice Sherr allowed government reports that listed average salaries for different types of employment in as evidence. However, the father was imputed an income far below the reported average income for insurance salespersons and financial advisors because the father was 60 years old, had not worked for anyone other than himself for several years and, as such, would likely not earn as much as an average insurance salesperson or financial advisor as soon as he re-entered the job market.
Justice Sherr noted that the trial judge would likely attribute a higher income to the father after a full hearing of the facts and pointed out that this judgement might be difficult to enforce because the father was in breach of Support Orders made after the breakdown of a previous relationship.
The motions judge in this case recognized that the trial judge would have the opportunity to better assess the payor’s credibility, review all the required financial disclosure and would ultimately make the final decision as to how much child support was appropriate. However, the motions judge also recognized that the child could not wait until a trial to be adequately supported. The parties would have the opportunity to test the evidence further at the eventual trial, and his order for temporary child support could be adjusted retroactively. In the meantime, the motions judge, upon careful review of the case law and evidence before him, made a temporary order requiring the payor to pay an increased amount of child support.
I found it interesting that the judge made specific reference to the Ontario Job Futures information presented to him. I often look at the Ontario Job Futures information on the Internet when I am assessing what a reasonable income may be for an uncooperative party. This information can be hard to find on the Internet. It is currently provided through the Ontario Ministry of Training, Colleges and Universities website: http://www.tcu.gov.on.ca/eng/ojf/ or http://www.ontariojobfutures.ca. The link to searching job profiles is: http://www.tcu.gov.on.ca/eng/ojf/findoccupation.asp. However, persons who are contemplating using these salary publications as evidence in the future should recall Justice Sherr’s comments that he was treating them with considerable caution as they are unsworn, hearsay evidence that has not been tested by cross-examination. Justice Sherr was also cognisant of the fact that the salary publications may not be directly applicable to the payor in this case, who had not earned that level of income for some time, was now 60 and was unlikely to be hired as a branch manager.