Test for imputed income not found to be met in Ontario Court of Appeal case

D. (D.) v. D. (H.)
2015 CarswellOnt 8418
Ontario Court of Appeal

Family law --- Support — Spousal support under Divorce Act and provincial statutes — Determination of spouse's annual income — Imputed income

Mother and father began cohabiting in 2006, married in 2008 and had two children — In 2009, Children's Aid Society became involved with family due to concerns about risk of harm to children as result of exposure to domestic violence — Father was charged with criminal harassment, dangerous driving, intimidation and assault as result of incident in April 2011 and charged with criminal harassment and failure to comply with his recognizance after incident in August 2011 — Parties consented to mother having sole custody, father having specified access and father paying $1,488 per month in child support — After incident in October 2012, father was charged with assault, forcible confinement and breach of probation — Mother and children moved to Alberta — After father learned of move, he successfully brought ex parte motion for order requiring mother to return children to Ontario into father's temporary without prejudice care — Father brought motion to vary consent order — Father's child and spousal support obligations were terminated and mother was ordered to pay father child support based on imputed annual income of $20,000 — Mother appealed from motion judge's orders, seeking that orders be set aside and motion to vary remitted for fresh hearing — Appeal allowed and new hearing ordered — Father's bald assertion that mother could earn $20,000 per year was insufficient to meet legal test for imputation of income for child support purposes — There had to be rational basis for amount selected and it had to be grounded in evidence and have regard to relevant factors — Record was virtually bereft of any evidence on these matters, and motion judge did not appear to have appreciated applicable legal principles when imputing income to mother — Motion judge herself recognized that mother may not be able to work in any job at all given her medical issues.