A court’s number and your pay stub do not always match. A parent whose earnings fell from $90,000 to $38,000 in a single year may be surprised to find support ordered as though nothing had changed. Another parent may watch a former partner give up steady work to “start a business” and wonder why the support cheque has shrunk, then learn that the law offers a remedy. Both are running into the same idea: imputing income.
To impute income is to attribute an income to a person that they did not report, because the actual figure does not fairly reflect what they could or should be contributing. The tool exists to stop support from being defeated by choices or by incomplete information. It can also be used unfairly in a dispute, so the rules include limits, and judges want evidence rather than suspicion.
This article gives general information and not legal advice. The outcome in any case depends heavily on its facts, and the figures used here are hypothetical.
Where the power comes from
Section 19 of the Federal Child Support Guidelines says the court may impute “such amount of income” as it considers appropriate in the circumstances. The Ontario Child Support Guidelines contain a parallel provision for parents whose cases fall under provincial law. The section lists circumstances that include:
- a parent who is intentionally under-employed or unemployed, unless this is required by the needs of a child of the marriage or a child under age of majority, or by the parent’s own reasonable educational or health needs
- a parent exempt from paying income tax
- a parent living in a country with significantly lower effective income tax rates
- income that has been diverted in a way that would affect the support level
- property that is not reasonably used to generate income
- a failure to provide income information when legally required
- unreasonable deductions of expenses from income
- a significant portion of income from dividends, capital gains or other sources taxed at a lower rate or exempt from tax
- a beneficial interest in a trust from which the parent receives, or will receive, income or other benefits
The list is not exhaustive. The section says “including”, so a court may act in other appropriate situations too.
This article is mainly about the first ground, which is the one that catches most people who are not running their own businesses. The self-employment questions of business write-offs and corporate income are their own subject.
The three questions
In Ontario, the leading case is Drygala v. Pauli, a 2002 decision of the Court of Appeal. It sets out three questions that courts still work through:
- Is the parent intentionally under-employed or unemployed?
- If so, is that required by the parent’s reasonable educational needs, the needs of a child, or the parent’s reasonable health needs?
- If not, what income should be imputed?
The court also made a point that surprises many people. “Intentionally” does not mean “with the intent to avoid support”. A person who chooses to earn less than they are capable of earning is intentionally under-employed, whatever the reason. No bad faith has to be shown.
So a parent could leave a good job for a perfectly sympathetic reason, like wanting a less stressful life or moving closer to a new partner, and still have income imputed. The question is not whether they are a bad person. The question is whether they have chosen to earn less while a child depends on them.
What is not intentional
The first question has a limit, and it matters. A person who has been laid off, whose hours have been cut or whose employer has closed is not “choosing” that result. If a Brampton warehouse closes and a worker is genuinely looking for work, income should not be imputed simply because the worker used to earn more.
But that protection fades with time and depends on effort. A parent who has been laid off is expected to look for suitable work. A judge will want to see job applications, responses and interviews, and not a general statement that nothing is out there. In the same way, a person who was fired for misconduct may get less sympathy, depending on the circumstances.
Keep a job search log with dates, employers, positions and results. If you are out of work, this may be the most useful document you can prepare. If you are the other parent, ask for it.
The reasons the law accepts
Where the choice to earn less is intentional, the second question asks whether it is justified.
Children’s needs. A parent who stays home with a very young child, or who works part time to care for a child with a disability, may have a strong answer. As children get older and go to school, courts can expect a return to work over time. How fast depends on the family’s history, the child’s needs and available child care.
Health. Medical reasons can justify working less, but you need evidence. A note saying “patient reports back pain” may carry little weight. A more detailed report from your doctor stating what you can and cannot do, and for how long, tends to carry more. A letter of this kind should address work capacity as well as the diagnosis.
Education. Going back to school can be reasonable, especially when it leads to better earnings in a reasonable time and fits the person’s history. The court may look at how long the program runs, whether it is realistic, whether the parent could work part time as well, and whether the child would ultimately benefit. A retraining program for someone whose trade has disappeared is a different case from a person with a stable career who decides to change direction and pay less support for four years.
These justifications are not automatic, and the parent who relies on them is the one who should be ready to prove them.
How a judge chooses the number
Once a court gets to the third question, it must settle on a figure. The court cannot simply pull a number out of the air. There has to be an evidentiary basis, and the person seeking imputation generally has to give the court something to work with, although the other parent’s silence can shift things considerably.
The factors courts typically look at include:
- age, education and training
- work history and most recent earnings
- health
- the hours and pay realistically available in the local job market
- language skills and any barriers to working in a particular field, such as foreign credentials not recognized in Ontario
- whether the parent has moved, and what work is available in the new location
- the parent’s lifestyle, where spending does not match the claimed income
Consider a hypothetical. A parent who was a licensed truck driver earning $85,000 gives up driving and takes a retail job at $40,000, saying that the job has better hours. A court could look at what drivers earn in Peel’s logistics sector and impute something close to the former pay. On the other hand, if the same driver lost their licence for medical reasons and has been retraining, the court might use the retail wage, or a modest figure above it.
Imputation does not have to be all-or-nothing. In Drygala itself, the Court of Appeal reduced the imputed figure from the amount set at trial. Judges can settle on an amount between the two positions, and they may look at full-time work at minimum wage as a floor for someone with no recent record and no barrier to working. Do not assume, however, that this is a ceiling for someone with greater capacity.
Failing to disclose is its own risk
A parent who refuses to give financial information may face imputation for that reason alone. Under section 19(1)(f) of the Guidelines, failure to provide income information when legally required is a listed ground, while sections 22 and 23 go further. If a parent does not comply with the Guidelines’ disclosure rules, the other parent can ask for the case to be set down for a hearing or for an order requiring the documents. The court can draw an adverse inference and impute income in whatever amount it considers appropriate, and it can make a costs order up to full compensation.
In other words, silence is rarely safe. Judges are often unsympathetic to a parent who withholds documents and then complains about the number that results. Filing tax returns late is a problem that can usually be fixed. Refusing to file is much harder to explain.
Spousal support
Imputing income is not limited to child support. Courts in Ontario also use similar reasoning for spousal support, where a spouse’s income, or a claimant’s earning capacity, can be central. A claim for support may be answered with the argument that the recipient could work, or could work more. The Divorce Act and the Family Law Act both contemplate spouses becoming self-sufficient where practicable, and how that applies depends a great deal on the length of the relationship and the roles each person took on. A recipient who spent fifteen years at home raising children is in a very different position from a person in a short marriage, and judges generally allow for that.
Practical steps for each side
If you are the one being accused of under-earning:
- Do not quit, reduce your hours or change careers while you owe support without first getting advice on the consequences.
- Keep your job search log, even if it feels pointless.
- Get a detailed medical opinion if your health is the reason.
- Prepare a realistic plan and timeline for any education, with the program outline and expected outcome.
- Provide your financial disclosure on time and in full.
- Bring a motion to change if your income has genuinely dropped. An order keeps running until it is changed, and delay may leave you with arrears you cannot easily undo.
If you believe the other parent is earning less than they could:
- Ask for documents in writing, and refer to section 21 of the Guidelines.
- Collect evidence of their past income, qualifications and job postings for similar work in the area.
- Watch for lifestyle signals, like new vehicles or travel, but remember that debt, a new partner or family help can also explain them.
- Be fair about their limits. A court is unlikely to impute a high figure on the strength of a resentful guess.
- Think about whether the likely increase in support justifies the cost of a contested motion.
Why specific evidence wins these arguments
Most imputation disputes come down to who gave the judge the better facts. Broad statements like “he could earn much more” or “there are no jobs” add little. Pay stubs, tax returns, resumes, job listings, medical letters and school records add a lot. If an order is eventually made on an imputed income, the reasons should explain the figure, and that explanation will matter later if circumstances change and someone wants to return to court.
If your income or the other parent’s has changed, or if you have been served with a claim that you could earn more, our child and spousal support page sets out some more background on how support is determined. You can contact the office if you would like to discuss the facts of your own case.