Evidence required to prove imputed income beyond minimum wage

Beck v. Beckett, 2011 ONCA 559 deal with imputed income in the family law context.

It is common in family matters for parties to request income be imputed to the other spouse.   If this is to be done and the income imputed is to exceed minimum wage there must be evidence.  The Court holds:

 

Imputed Income

[29]         The appellant submits that the trial judge erred in only imputing income to the respondent on the basis of minimum wage unskilled employment.  She submits that the trial judge should have imputed income to him in an amount comparable to what he was earning at General Motors as was done in the interim order of Roswell J. when the trial was adjourned.  The parties adduced no evidence, aside from their own testimony, about employment prospects in the Oshawa area.  In those circumstances, this court must defer to the trial judge’s view of what amount was reasonable to impute to the respondent.  In fact, the appellant’s own evidence tended to support the trial judge’s conclusion.  The only employment opportunities she was aware of that might suit the respondent were at stores like Canadian Tire and Home Depot, which, while hiring employees, were offering only the minimum wage or “maybe a little bit more”.

[30]         In Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.) at para. 45, Gillese J.A. reviewed the factors to be considered in imputing income to a parent who is intentionally under-employed or unemployed:

When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example,Hanson, supra, and Cholodniuk v. Sears (2001), 14 R.F.L. (5th) 9, 204 Sask. R. 268 (Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

[31]         The trial judge considered most of these factors, in particular the respondent’s age, education, experience, skills and health and the little evidence there was on the availability of employment in the area.  I have not been persuaded that there is any basis for varying the order imputing income to the respondent.