Sometimes, a person paying child support makes a claim to have support reduced or terminated based on a reduction in his or her income. While some of these claims are legitimate, some are not.
As lawyers we often hear of people threatening to quit work to avoid their support obligation.
The Federal Child Support Guidelines give courts the authority to "impute" income to a payor in situations where the court finds that it is fair and reasonable to do so. So what are the factors a court considers in such a situation?
First, a judge must use facts and evidence to make a determination of a person’s income. Even though a judge has a great deal of discretion to make a decision, there has to be a proper basis for the judge’s conclusion. Some evidence that is used to assist the judge are previous income tax returns, pay stubs, letters from current or previous employers and witnesses who have knowledge as to the person’s income (such as the Human Resources personnel who generate paycheques for the payor’s employer).
Secondly, the goal of imputing income is to arrive at a fair estimate of income and not to punish the payor.
Thirdly, the burden usually rests on the person making the claim. This means that if a former wife wants income imputed to her former husband, the burden rests with her to prove that an imputation is appropriate. However, if a person asserts that his or her earning capacity is reduced because of health problems, then the burden shifts to them to prove that the health problems exist and that the reduction in income is reasonable. This essentially would mean that the person would have to show that he or she cannot work and earn a similar income to what they have earned in the past because ill health prevents them from doing so. This would include proving that they are unable to take a different job which would pay similar to their old job.
For example, there are some jobs which require physical labour that a person may not be able to do because of health problems, while a desk job might be a perfectly reasonable alternative and allows the person to continue to work and earn income.
Fourthly, the court can consider different factors such as earning capacity, the payor’s age, health, education, skills, employment history and decide what level of income is reasonable given all of these factors.
Finally, if a person decides to remain unemployed or underemployed, a court can absolutely impute income if the court decides that the person has the ability to earn more income. A person cannot avoid a support obligation by a self-induced reduction in income.
The long and the short of it is that if a payor is going to ask to reduce or terminate their support obligation, they must provide the court with proof that their request is reasonable, otherwise it is entirely likely that the court will impute income to them and their support obligation will continue.
» Kelli Potter is a lawyer with Paterson, Patterson, Wyman and Abel, with offices in Brandon, Neepawa and Virden.
Republished from the Brandon Sun print edition March 16, 2013