Written on behalf of Shariff & Associates
A party is considered to be intentionally underemployed when they choose not to work or earn the income they are capable of earning given their experience and education. This is a significant factor when calculating spousal support and child support obligations. If a party suspects the other party is deliberately not earning an appropriate income, they can ask a court to impute additional amount for support calculation purposes. While it is reasonable to account for a party’s employment history, skills, and capacity, how does a court weigh a party’s part-time employment? Is it reasonable for a party to work part-time and still avoid having income imputed to them?
In some cases, a period of part-time work can be reasonable, provided it is temporary. In Dabrowska v. Bragagnolo, the father worked as a truck driver for the same employer for a number of years, but there was difficulty in predicting his future income, as new government regulations restricted the working hours for truck drivers. As a result, his company reduced his work hours. The father explained that his route was now split between two drivers in order to comply with the new regulations and that he now only worked between 25 to 30 hours each week. His working hours were much less than he worked in the past, and he would not be earning the same income as a result. Nevertheless, the father indicated that he expected his hours to increase.
The mother argued that the father was under-employed and that additional income should be imputed to him for support calculations. She suggested that additional hours were available and that he intentionally limited his working hours to reduce his support obligations. Despite these arguments, the mother had no evidence to indicate the father was intentionally under-employed.
As the judge explained, her suspicions alone were not enough. On the other hand, the father’s explanation about his employment was credible. He introduced evidence from his employer confirming that he never turned down work but actively sought it. The judge also accepted that it would be difficult for the father to find another position as a trucker with the possibility of a greater income as he was restricted from driving into the United States. Further, his current role had the potential to offer increased hours in the future. The husband explained that this employer treated him well, and he wanted to remain loyal to the company. Overall, the judge did not find that it was unreasonable for the husband to continue working for his employer. For now, there was no basis to impute additional income. However, if the expected additional work hours did not materialize, the judge indicated that the father would be expected to obtain other part-time work to supplement his income, noting that it would not be reasonable for him to continue to work part-time indefinitely.
In Bari v. Nassr, the applicant husband was the primary income earner for the family. He maintained a full-time position with the Canada Revenue Agency and earned approximately $63,000 annually. He also worked part-time with Brinks and earned a further $21,000 from that role. In calculating his spousal and child support obligations, the applicant asked that support be based only on his annual salary from the Canada Revenue Agency, without adding his earnings from his part-time work.
The applicant distinguished his income from Brinks and his income from Canada Revenue Agency because his job at Brinks was part-time and had resulted in injury to his right hand, arm, elbow, and shoulder. He worried that if he continued working in that role, he could end up with a long-term disability, making it harder for him to work. He also explained that because of his extended working hours in both roles, he had no social life and that his doctor had advised him to slow down and avoid prolonged periods of sitting and computer work.
Justice Tzimas appreciated that the applicant worked hard but noted that he had not followed his doctor’s advice, as he continued to maintain both jobs and intended to continue both into the future. The husband had also magnified his injury. Importantly, that injury was connected to his employment at Brinks, but there was nothing to suggest he had no other choice than to continue that work at Brinks. In the judge’s view, if the applicant had “the capacity to have a second job, he could look at other options with other employers” or seek promotions within the federal government. There was no reason to discount his part-time earnings merely because, at some point, he would change his lifestyle and give up the job at Brinks as it was possible for him to locate alternative employment. Consequently, the Court found that his support obligations were determined based on a total income of $84,000.
Determining whether a party is underemployed can require looking at whether they are capable of earning more income, acknowledging the nature of the party’s occupation, age, and skills. In Diamond v. Berman, the respondent husband argued that his former wife worked full-time before their first child was born and that as childcare responsibilities diminished, she should have returned to the workplace. He alleged that she should have an income of $90,000 imputed to her under section 19(1)(a) of the Federal Child Support Guidelines. He did not accept that she was trying to become self-sufficient and was unwilling to support her while she only worked part-time.
The applicant, aged 53, was a dental hygienist and, during the marriage, was the second income earner. She explained that during the marriage, she missed the opportunity to upgrade her skills, and she did not have the education to work in a digital dental office which was the current standard. A full-time role was not available at her office, but she worked part-time and asked for additional hours. She maintained 20 hours each week and explained that there was no part-time position at another dental practice that could supplement her hours at the same pay rate or have complementary hours. She also felt that she was lucky to have her current position, where she earned a high hourly rate. Additionally, her current hours enabled her to avoid common injuries such as repetitive strain injury, back pain, and carpal tunnel syndrome that are common among dental hygienists.
The Court heard expert evidence from a vocational assessment where the expert testified that 60% of dental hygienists did not work full-time, with a median of 30 hours each week as the industry standard. The expert also agreed that the applicant’s lack of technology skills limited her in obtaining other jobs as most dental offices required skills and knowledge of electronic systems. Nevertheless, the applicant did earn a high hourly rate in her profession. Overall, the expert was of the opinion that the applicant maintained a reasonable working schedule.
Despite the respondent’s request for the Court to impute the applicant’s income by simply calculating her hourly rate at a full-time position, Justice McGee found there was no basis to do so as full-time employment was not available. For 25 years, the applicant worked part-time and now has taken the steps available to her to increase her economic self-sufficiency by increasing her hours.
Mere suspicions of bad faith are not enough to have income imputed when a party is working less than full-time. While parties have to earn the income they are capable of, this does not mean that a full-time job is required in every case. On the other hand, when a party has taken a second job to earn extra income, this can be expected to continue after separation.
Contact the Family Lawyers at Shariff & Associates for Advice on Support Obligations and Imputed Income
The compassionate separation and divorce lawyers at Shariff & Associates help clients resolve various family disputes, including child support obligations and parenting disputes. Our lawyers understand that following a divorce, financial concerns are often at the forefront of most people’s minds, which is why we provide clients with a thorough assessment of their situation and their options in order to develop the best plan to help them move forward. Located in Stouffville, we happily represent clients throughout Markham and the Greater Toronto Area. Call us at 905-591-4545 or reach out to us online to schedule an initial consultation with a member of our team.