Can a Parent Be Considered Intentionally Underemployed?


Written on behalf of Shariff & Associates

When a parent is ordered to pay child support, they cannot deliberately reduce their income in an attempt to lessen their support obligations. In cases where this occurs, courts can impute income to the responsible parent in an amount that corresponds to their earning ability. In a recent decision, the Ontario Superior Court of Justice considered whether a father, who had been terminated from his employment, was intentionally underemployed in an attempt to avoid paying child support.

Father’s Employment Affected by COVID-19, Medical Issues

The parties are both trained pilots and had two children during their marriage, which ended in 2019. The mother was employed by an airline but advised the court at trial that she was on medical leave due to anxiety and sleep issues, although she provided no supporting medical evidence. 

The father was also employed by an airline based in Qatar, but was terminated from his employment in July 2021. He advised the court he believed his dismissal was caused by the economic effects of COVID-19 on the travel industry. He also stated he thought his own mental health issues and the mother’s efforts to damage his reputation with his employer were other factors that contributed to his termination. At the time his employment ended, he was taking prescribed medication which prevented him from flying.

The father provided evidence from a psychologist who testified his symptoms were consistent with Adjustment Disorder, which “impacts his ability to sleep, think clearly, regulate himself emotionally and concentrate.” The psychologist said he was unlikely to be able to return to work until these health issues were addressed. The father had, however, been conditionally offered a job as a pilot for another company. 

The mother’s application requested, among other things, that the father pay child support based on the income he was making prior to being terminated from his job. His income at that time was $154,016, but it was grossed up to $250,005 since he did not pay any income tax while living abroad for work. Her position was the father could have kept his job, or in the alternative, should be able to find a job that pays him a salary similar to what he made with his previous employer.

Court Considered Whether Father was Intentionally Underemployed

The court was critical of the mother’s application, which was filed as a motion despite the complicated nature of the issues in dispute. While the father was able to provide psychological evidence speaking to his inability to work, the mother had not provided any evidence of her medical issues outside of her long-term disability payments. The court noted both of the parties described suffering from similar symptoms. The father also provided a termination letter from his employer that demonstrated its right to terminate his employment at any time with notice.

The father’s new job offer was conditional on the provision of criminal record and employment verification checks, as well as a cognitive assessment. If he was successful in providing the required documentation, he would be scheduled to begin work in mid-October 2021.

The court found there was no evidence provided on which it could find the father was intentionally avoiding work. It noted the father was trying to satisfy the conditions of his offer of employment and seemed willing to re-enter the workforce. As a result, the court set child support in an amount that took into consideration the salary of the father’s potential job as well as the mother’s income. The mother was also held responsible for 51% of extraordinary expenses. The court declined to grant a request by the mother for spousal support, as the parents’ incomes would soon be nearly identical. 

Contact the Family Law Lawyers at Shariff & Associates in Stouffville for Guidance in Child Support Matters

The compassionate and experienced family law lawyers at Shariff & Associates work with clients to reach fair and equitable resolutions to child support disputes. We aim to avoid lengthy and expensive litigation by seeking resolutions through negotiation and collaborative family law practices. However, we are always prepared to litigate matters in court when necessary. Please call us at 905-591-4545 or reach out to us online to schedule a consultation today.