Ottawa Men's Centre

 

Peter Roscoe's Research

 

 

 

                            

                        

              

                                              Superior Court Penalties I

                                       

                            Intentionally Unemployed / Underemployment

 

 

 

 

     Peter Karl Roscoe

 

        Aug  2006

 

                  

 

 

 

Intentional unemployment can be thought of as a sub category of imputed income as parties found to be intentionally unemployed virtually always had income imputed. The general thrust of such a ruling is that the party could be earning a greater income than they are presently doing. Intent is not a necessary condition to be so categorized. Inefficient use of assets may qualify. The most common situation is where a support recipient is attempting to receive higher payments by having the court attribute a higher income to the payor. Imputed income may be transitional to convince a payor to get back to work, or dramatic in the form of a lump sum to a high income earner who has failed to achieve to capacity. Imputations are usually based on past performance.

 

 

To some extent a declaration of intentional unemployment may be subjective. In some cases retraining for a higher paying career may be deemed desireable and allowed without penalty. In others it may be found to be undesireable and the party may be punished for not living up to full capacity. Unemployed persons may get sympathy for not being able to find work, or be penalized and accused of not trying hard enough, or purposefully failing. Even assets may be seized and liquidated if it is felt they aren’t earning a high enough return. The most common rationale for interference with personal autonomy in these matters are the payors obligation to provide for the children. The court will maintain the obligation supercedes the wishes of the payor.

 

 

A problem with this categorization is that a persons earning capacity must be determined by the court. It must be judged when a persons desire to live their life as they please, or use their assets in the manner that most suits them, is acceptable or not. A government court which does not necessarily share their aspirations must make potentially fundamental decisions about their lives. Future events must be predicted and speculated on. Sometimes expert witnesses are called upon to give appraisals of future earning potentials. Many careers do not provide for stable predictable incomes or employment. Future performance may easily be set too high or too low. If it is set too low obligations are not properly provided for. If it is set too high a payor may quickly wind up in default and subject to other penalties including jail. In the extreme, a court may order a person imprisoned because they cannot find work. Because they do not wish to do a job the government court has chosen for them. And a party in default may be unable to have an order varied. An unrealistically high imputation may even be a disincentive to working. Persons who worked large numbers of overtime hours in the past may have these overtime hours enshrined on their future income as required performance. An extreme example would be an unqualifed person who worked 2 minimum wage jobs to get ahead. A non custodial parent might be bankrupted or forced to change careers because of the decision of the custodial parent to stay home with the kids, or to send them to private school. The potential for problems with declarations of intentional unemployment are high.

 

 

As with imputed income these cases are not restricted to claims against payors. The recipients income may be significant in setting support and the payor may try to claim recipients are intentionally unemployed to lessen their burden. 54 cases where identified in the database where one party attempted to claim the other was intentionally unemployed. The cases and their outcomes are summarized in Appendix F.

 

 

 

 

For family cases where underemployment was an issue the results are as follows

 

 

 

Party

Number

of  cases

Intentionally unemployed

 Denied

Minor or no ..penalty

Male

    38

      31

      7

       2

Female

     16

       7

      9

       5


 

 

 

 

Summarized in percentage terms

 

 

 

Party

Number

of  cases

Intentionally

unemployed

 Denied

Minor or no ..penalty

Male

   100

      80.0

    20.0

      5.7

Female

   100

      12.4

     56.3

     31.3


 

 

 

 

% Men Intentionally Unemployed  = 31/ 38x 100 = 81.6 %

 

% Women Intentionally Unemployed  = 7 / 35x 100 = 18.4 %

 

 

 

 

 

 

                                                          Conclusions

 

 

It must be noted that 5 out of 7 women underemployed received minor or no penalties which is equivalent to receiving relief. Also 2 out of 27 men received a minor penalty, so after relief is considered the statistics are as follows

 

                                     % Men Intentionally Unemployed  = 29 / 31 x 100 = 93.5 %

 

                                     % Women Intentionally Unemployed  = 2 / 31 x 100 = 6.5 %

 

 

 It can be concluded that men comprise 81.6 % of the family cases where a party is declared intentionally unemployed before relief is considered, and 93.5 % after. When a request for a declaration is made against a man there is a 20.0 % chance it will be denied, and if he is declared intentionally unemployed a 7.1 % he will receive minor or no penalization. When a request for a declaration is made against a woman there is a 56.3 % chance it will be denied, and if she is declared intentionally unemployed a 31.3 % she will receive minor or no penalization. The consequences may be quite substancial if a payor is left with little or nothing to survive. If an imputed order is defaulted on, further penalties such as garnishment, seizure and / or imprisonment may be imposed.

 

 

 

 

 

 

 

Appendix E — Ontario Imputed Income Cases Sudied

 

 

 

 

Sex..of

  party

                      Outcome

 

1

Praill v. Praill, 2004 CanLII 5074 (ON S.C.)

m

Double recovery of undervalued portion of mans pension allowed but support reduced from 1.2 K per month to $ 850

2

Scott v. Scott, 2003 CanLII 2234 (ON S.C.)

w

Woman imputed at full income of 36 K after quitting her job for 6 months, then at half income for 6 months, then back to full as incentive, reduces support she’s owed to $360 per month, minor

3

Marok v. Marok, 2003 CanLII 9094 (ON S.C.)

 

m

Man with variable income he claims 40 K imputed to 60 K, interim variation refused due to arrears

4

Caterini v. Zaccaria, 2002 CanLII 2772 (ON S.C.)

m

Man s income drops. Minor 1 K imputation added to his claim instead of 9 K asked

5

Courchesne v. Courchesne, 2004 CanLII 5003 (ON S.C.)

m

Intransient with alcohol problem for many years ordered to pay 43 K in arrears and imputed at 25 K

6

Scholes v. Scholes, 2003 CanLII 2349 (ON S.C.)

m

Man claims his income at 25 K and court imputes at 60 K

7

Roberts v. Roberts, 2004 CanLII 18250 (ON S.C.)

m

Man declares 36 K and court impute 63 K

8

Walsh v. Walsh, 2003 CanLII 2268 (ON S.C.)

m

Mans income underimputed creating a shortfall of 42 K arrears

9

Kimla v. Golds, 2005 CanLII 6928 (ON S.C.)

m

Man unemployed and presents plan for new business. Ask income imputed at 30 K but court imputes at 88 K

10

Grierson v. Brunton, 2004 CanLII 4019 (ON S.C.)

w

13 K in imputed income to unemployed wife, previous job was over 30 K average

11

Priftis v. Priftis, 2005 CanLII 47093 (ON S.C.)

m

Man says his income should be 24 K but court imputes at 39 K

12

M. Al. O. v. Me. A. O., 2005 CanLII 2740 (ON S.C.)

m

Man on unemployment imputed at 40 K per year

13

Cherry v. Cherry, 2004 CanLII 1649 (ON S.C.)

m

Man on disability for 2.5 K per year imputed to 18.5 K, 32 K support arrears reduced to 21

14

Lowe v. Lowe, 2006 CanLII 729 (ON S.C.)

m

Man imputed to 88 K for future business though he claims 30 K. Wife not imputed for child support

15

Derek Cross v. Lila Cross, 2004 CanLII 13409 (ON S.C.)

m

Man works on contract for over 100 K then is unemployed, income imputed to 50 K 40 K arrears

16

D.W. v. C.O., 2006 CanLII 13554 (ON S.C.)

w

With a former income of 134 K and current declared income of 33 K given transitional imputation of 38 K then 62 K

17

Chrysler v. Chrysler, 2006 CanLII 9596 (ON S.C.)

m

Mans imputed income increased from 58 K to 99 K

18

Tran v. Lee, 2003 CanLII 11863 (ON S.C.)

m

Man claims 35 K income imputed to 50 K, 162 K arrears to be paid from house, Mans remaining 50 K to be held as security

19

Goryjowski v. Goryjowska, 2005 CanLII 3395 (ON S.C.)

m

Mans income imputed at 21 K

20

Irwin v. Irwin, 2005 CanLII 8725 (ON S.C.)

m

Mans income imputed at 33 K

21

Pearson v. McAteer, 2005 CanLII 32002 (ON S.C.)

m

Man declares 4 K income imputed to 13 K, 6 K in s.7 expenses

22

Meikle v. Meikle, 2003 CanLII 2183 (ON S.C.)

m

55 K extra income imputed to man from RRSP’s

23

Remus v. Remus, 2003 CanLII 2222 (ON S.C.)

m

Man imputed from 9 K to 10.5 K. Wife pays him net child support, mild

24

Clark v. Clark, 2002 CanLII 2773 (ON S.C.)

m

5 K per year extra income imputed from unknown source

25

Guy v. Tulloch, 2004 CanLII 11695 (ON S.C.)

m

Man claims 55 K imputed to 102 K.

26

J.H. v. S.H., 2004 CanLII 29739 (ON S.C.)

m

Income imputed to father but not specified, 1 K spousal support, joint custody switched to sole custody to wife

27

Hart v. Hart, 2003 CanLII 2129 (ON S.C.)

m

Mans imputed income is almost identical to his stated income, minor

28

Bemrose v. Fetter, 2006 CanLII 8201 (ON S.C.)

w

Wifes has small imputed income, minor

29

Hakim-Kyei v. Kyei, 2005 CanLII 34581 (ON S.C.)

m

Claims 22 K imputed to 37 K, retroactive arrears

30

Krolyk v. Krolyk, 2005 CanLII 15478 (ON S.C.)

w

Imputed income of 10.5 K to wife lowers her spousal support to 1.85 K per month, Wife gets house transferred to her and will get part of mans pension on realization, minor

31

Babb v. Downer, 2005 CanLII 3371 (ON S.C.)

m

Mans income imputed many times higher than he claimed, costs 4 K

32

Bourget v. Bourget, 2006 CanLII 2888 (ON S.C.)

m

Mans income imputed upwards 2 K per year for overtime, minor

33

Beaudry v. Beaudry, 2004 CanLII 20399 (ON S.C.)

m

Leave from work constitutes underemployment, 15 K added to years income, 7 K lump spousal support

33

Nanan v. Nanan, 2006 CanLII 12718 (ON S.C.)

m

Claims 83 K imputed to 88 K, pays 1.5 K spousal support and 2 K mortgage, and child support, 8.6 K costs

34

Tyll v. Dini-Tyll, 2003 CanLII 2262 (ON S.C.)

m

Man works out of home so cash flow may be more than reported, imputed to 30 K

35

Rueter v. Rueter, 2003 CanLII 2231 (ON S.C.)

m

Man declares 45 K but is imputed to 78 K, 2.5 K per month total support

36

Beal v. Beal, 2005 CanLII 30326 (ON S.C.)

m

Man claims no income and is imputed to 35 K

37

Cole v. Cole, 2005 CanLII 44828 (ON S.C.)

w

Intentionally underemployed as she earns less as a teacher, imputed to former income, retroactive support and s.7 expenses

38

Abdilla v. Abdilla, 2004 CanLII 35086 (ON S.C.)

m

Man unemployed imputed to 30 K and declared intentionally unemployed

39

Lalonde v. Lalonde, 2005 CanLII 16637 (ON S.C.)

m

Man on unemployment is intentionally unemployed, 21 K support arrears, imputed to 27 K per year

40

Marchese v. Marchese, 2002 CanLII 40030 (ON S.C.)

m

Man studying for PHD can make extra income, imputed at 20 K per year

41

Wright v. Wright, 2004 CanLII 19944 (ON S.C.)

m

Unemployed man imputed to 40 K per year, RRSP vested to wife for arrears

42

Raphael v. Raphael, 2003 CanLII 2215 (ON S.C.)

m, w

Mans stated income 30 K imputed at 150 K, wife, 4.2 K per month total support, wife imputed to 15 K per tear, wife minor

43

O'Brien v. O'Brien, 2003 CanLII 2366 (ON S.C.)

m

Man claims 35 K income and is imputed at 81 K

44

David v. David, 2004 CanLII 46652 (ON S.C.)

 

m, w

Man claims 65 K imputed to 125 K, One year of spousal support at 2.5 K then unemployed wife imputed to 20 K and spousal support drops to 1.75 K for 5 years, wife minor

45

Lajoie v. Lajoie, 2005 CanLII 23684 (ON S.C.)

m

Mans declared income is 12 K but is imputed to 43 K

46

Armstrong v. Armstrong, 2004 CanLII 12100 (ON S.C.)

m

Man on disability imputed to 47 K per year, lump sum retroactive support

47

Richards v. Richards, 2005 CanLII 3398 (ON S.C.)

m

Man claims 20 K income is imputed to 60 K

48

Swanson v. Swanson, 2004 CanLII 48679 (ON S.C.)

m

Man on welfare and living at YMCA is imputed to 80 K lump sum and contempted when he doesn’t pay, intentionally unemployed, imputed to 40 K per year

49

Graham v. Graham, 2005 CanLII 23682 (ON S.C.)

m

Man declares 100 K income and is imputed to 200 K, 10 K per month total interim support, 35 K interim disbursement to wife

50

Dang v. Hornby, 2006 CanLII 12973 (ON S.C.)

m

Man with 10 K income claimed intentionally unemployed and imputed to 40 K

51

Scodras v. Scodras, 2005 CanLII 14146 (ON S.C.)

w

Wife imputed to 42 K. Man has custody but pays wife $ 185 per month total support, minor

52

Galambos-Towers v. Towers, 2005 CanLII 44386 (ON S.C.)

m

Vague imputation of 20 K per year to underearning asset results in $ 200 per month spousal support, property equalization of 122 K to wife

53

Jordan v. Stewart, 2002 CanLII 2678 (ON S.C.)

m

Previous declared income of 140 K imputed to 227 K, 5.6 K per month in total support

54

Biddle v. Biddle, 2004 CanLII 52809 (ON S.C.)

m

Man declared 228 K imputed to 322 K, 9 K per month retroactive

55

J.M.M. v. G.S.M., 2006 CanLII 6457 (ON S.C.)

m

2 K income imputed to 70 K, pleadings struck, wife gets exclusive possession of home then vesting order, 1.3 K per month total support, restraining order

56

Di Matteo v. Del Medico, 2005 CanLII 27011 (ON S.C.)

m

Man claims 28 K imputed to 96 K, retroactive support, expert witnesses, 1.2 K per month child support

57

Pollock v. Pollock, 2006 CanLII 3483 (ON S.C.)

m

Mans disability and pension imputed and grossed up to 50 K per year, 1.9 K per month total support, wife gets exclusive possession of home, retroactive lump sum arrears

58

Bolt v. Bolt, 2006 CanLII 7504 (ON S.C.)

m

26 K per year imputed to husband from his share of house

59

Cunningham v. Montgomery-Cunningham, 2005 CanLII 36261 (ON S.C.)

m

Man imputed to 107 K then reimputed to139 K, non dissipation order

60

Ul Haq v. Ul Haq, 2003 CanLII 2263 (ON S.C.)

m

Man declares 24 K imputed to 60 K, retroactive arrears of support amd s.7 expenses

61

Maceus-Agyekum v. Agyekum, 2005 CanLII 10539 (ON S.C.)

m

Additional 50 K per year income imputed, retroactive support, s.7 expenses, lump sum arrears

62

Stoate v. Stoate, 2005 CanLII 13820 (ON S.C.)

m

Man retrains and is intentionally unemployed and imputed at former level of 33 K, arrears

63

Trick v. Trick, 2003 CanLII 2260 (ON S.C.)

m

Mans income imputed despite separation agreement, retroactive support, lump sum

64

Naidoo v. Naidoo, 2004 CanLII 34415 (ON S.C.)

m, w

Mans income imputed 130 K per month, wife at 41 K per month, man pays 1.2 K per month total support, wife mild

65

J.B. v. A.B., 2006 CanLII 12294 (ON S.C.)

m

Man fired from job imputed to 50 K per year

66

S.L. v. A.L., 2003 CanLII 2161 (ON S.C.)

m

Various imputed incomes for man creating 65 K in retroactive support arrears to be paid in 15 K lumps sums

67

Vangroenigen v. Vangroenigen, 2005 CanLII 38896 (ON S.C.)

m

Man declares 46 K but is imputed to 65 K for not working overtime

68

Korevaar v. Allard, 2003 CanLII 2151 (ON S.C.)

m

Man with declared incoe of 46 K imputed to 66 K

69

D.F. v. J.S., 2004 CanLII 8474 (ON S.C.)

m, w

Wife imputed at25 K , Mans income increased by 8 K over claimed, man pays 4.5 K per month total support, wife mild

70

Colafranceschi v. Colafranceschi, 2005 CanLII 10646 (ON S.C.)

m

Man imputed to 85 K from previous imputation of 62 K, wife gets ¾ of assets due to lump sum

71

D.J.C. v. N.C., 2004 CanLII 47783 (ON S.C.)

w

Wifes income imputed at 25 K, Mans income 196 K, wife recieves 4.9 K per month total support, mild

72

Juvatopolos v. Juvatopolos, 2004 CanLII 34843 (ON S.C.)

m, w

Man imputed to 50 K, wife underemployed and reduced from receiving 1.4 K to 1.2 K, then enters another relationship and support reduced to $ 400, wife mild

73

Reidy v. Reidy, 2005 CanLII 44401 (ON S.C.)

w

Wife claims 18 K income imputed to 20 K, father has custody, wife to pay $ 400 per month in child support, father to pay 1.2 K per month spousal support, mild

74

Roscoe v. Roscoe, 2003 CanLII 2037 (ON S.C.)

m

Man with no income and heavy stock losses imputed to 45 K and support set at 54 K

75

Hewat v. Hewat, 2003 CanLII 2131 (ON S.C.)

w

Wife imputed to 25 K , combined spousal and child support reduced to 4.5 K per month from 5.5 K, mild

76

D.B. v. J.B., 2006 CanLII 726 (ON S.C.)

m

Man claims 15 K imputed to 26 K

77

Straight v. Straight, 2004 CanLII 7046 (ON S.C.)

m

Man declares 58 K imputed to 70 K per year, court declines to impute wife, man pays 1 K spousal support

78

Blaschuk v. Bridgewater, 2005 CanLII 28787 (ON S.C.)

m, w

Man intentionally unemployed imputed to 55 K, wife imputed to 32 K, Man pays $ 800 per month in support, wife mild

79

Bedi v. Bedi, 2004 CanLII 34426 (ON S.C.)

m, w

Man imputed to 97 K wife imputed to 50 K, man must pay wife 1.2 K per month, retroactive support, wife mild

80

Dhanna v. Dhanna, 2004 CanLII 46660 (ON S.C.)

m

Man not working but imputed to 77 K per year, Man must pay 2.5 K per month total support, non depletion order

81

Di Luca v. Di Luca, 2003 CanLII 2343 (ON S.C.)

m, w

Man and wife imputed, man pays equivalent of 3 K support per month, wife mild

82

Belcastro v. Belcastro, 2004 CanLII 10991 (ON S.C.)

m, w

Man must be hiding income so set at 50 K per year, wife imputed at 64 K, Man must pay 1.1 K per year, wife mild

83

Barrick v. Barrick, 2006 CanLII 1317 (ON S.C.)

m

Man goes bankrupt, claims 32 K, imputed to 40 K, Must pay 1 K per month spousal support

84

Vandenelsen v. Merkley, 2003 CanLII 1965 (ON S.C.)

w

Wife who abducted children imputed to 30 K per year though unemployed,  temporary suspension of support payable and some arrears rescinded

85

L.S.M. v. A.M., 2006 CanLII 13413 (ON S.C.)

m

Man unemployed and waiting for surgery imputed to 35 K per year

86

Mashadi (Bankruptcy), Re, 2004 CanLII 15923 (ON S.C.)

m

Man goes bankrupt after judge imputes a 200 K income to him on wifes claims he runs a cash business

87

Dalgleish v. Dalgleish, 2003 CanLII 1944 (ON S.C.)

m

Imputed to 75 K per year, 1.8 K per month support, vesting order on house, s.7 expenses

88

Brown v. Brown, 2004 CanLII 12750 (ON S.C.)

m

Man declared 2 K income imputed to 15 K, man claims to be disabled but court finds he has a cash business

89

MacMillan v. MacMillan, 2002 CanLII 2685 (ON S.C.)

w

Wife imputed from declared income of 6 K to 20 K, wife recieves  total support of 4.5 K per month reduced from 5.25 K due to drop in mans income, mild

90

Eberl v. Eberl, 2004 CanLII 10617 (ON S.C.)

m

Man laid off from job is imputed to 28 K and it’s ordered no variations until his income exceeds 28 K, court refuses to impute income to wife, Man must payspousal support and $ 500 per month in child support

91

Cass v. Dyke, 2004 CanLII 5095 (ON S.C.)

m

Mans declared income of 43 K imputed to 175 K, 2.85 K per month total support, security deposit

92

Millward v. Millward, 2003 CanLII 2116 (ON S.C.)

m

Man imputed to 60 K at uncontested trial has income reduced to actual 46 K, man must pay spousal support of 1 K per month for 1 year and child support

93

Bullock v. Bullock, 2004 CanLII 16949 (ON S.C.)

m

Man takes early retirement at age 62, court says he is underemployed and imputes 120 K per year income, no variation of arrears

94

Hill v. Hill, 2002 CanLII 2790 (ON S.C

m

Mans declared income of 58 K imputed to 125 K

95

Hitchens v. Hitchens, 2004 CanLII 12899 (ON S.C.)

m

Man intentionally unemployed for leaving the country, lump sum retroactive support, vesting order, made 8 K imputed to 45 K

96

Shaw-McInnis v. Crawford, 2003 CanLII 2241 (ON S.C.)

m

Mans declared income of14 K imputed to 43 K and no relief for 2 years on welfare

97

V.S.J. v. L.J.G., 2004 CanLII 17126 (ON S.C.)

m

Mans 26 K income imputed to 41 K, sexual assault on child allegations unproven, supervised access

98

Hogan v. Hogan, 2004 CanLII 31372 (ON S.C.)

m

Man claims 39 K income, imputed to 85 K

99

Bruzas v. Bruzas, 2005 CanLII 36267 (ON S.C.)

m

Man imputed from 64 K claimed to 250 K, separation agreement overturned and man must pay 3.4 K instead  of 2.5 K per month

100

De Zen v. De Zen, 2002 CanLII 45410 (ON S.C.)

m

Man quits job due to back problem, court rules intentionally unemployed and imputes income of 1.9 million per year

101

Harris v. Harris, 2006 CanLII 9141 (ON S.C.)

m

Man claims 12 K income imputed to  20 K

102

Fang v. Fang, 2004 CanLII 13068 (ON S.C.)

m, w

Man unemployed is imputed to 60 K then to 100 K, total support of 2.15 K per month to be paid to wife, wife imputed to 20 K, wife mild

103

Dench v. Dench, 2005 CanLII 22211 (ON S.C.)

m, w

Man imputed to 150 K, wife imputed to 15 K, Man must pay 3.1 K per month in total support, wife mild

104

Campbell v. Szoke, 2003 CanLII 2291 (ON S.C.)

 

m

Mans maximum income over 6 years is 16 K imputed to 24 K, man must pay 1.1 K per month in spousal support

105

Ladisa v. Ladisa, 2004 CanLII 48170 (ON S.C.)

w

Wife imputed to 26 K and must pay  $232 in child support to man, Man sick and court declines to impute, man denied spousal support

106

Meade v. Meade, 2002 CanLII 2806 (ON S.C.)

 

m

Man with previously variable income is unemployed, income imputed to 53 K, support arrears, lump sum payment

107

A.N. v. M.A.Z., 2006 CanLII 12316 (ON S.C.)

m

Man pays 1.8 K per month based on an imputed income

108

L.A.G. v. M.E.F.G., 2004 CanLII 53222 (ON S.C.)

m

Man intentionally unemployed is imputed to 55 K which was maximum preseparation income

109

Testa v. Basi, 2005 CanLII 25186 (ON S.C.)

m

Man bankrupted and living in trailer is imputed to 25 K per year to pay support