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Family - Income. Amid v. Jones
In Amid v. Jones (Ont CA, 2024) the Ontario Court of Appeal dismissed a family law appeal addressing imputed income:[16] Income tax returns are a starting point for determining a parent’s annual income, but the court may impute additional income. Section 23 of the Guidelines permits the court to draw an adverse inference against and impute income to a party who fails to comply with their disclosure obligations.
[17] Section 19 of the Guidelines sets out a non-exhaustive list of circumstances under which the court may impute additional income to the payor. These include circumstances in which income has been diverted that would affect the level of child support or where the payor failed to provide legally required income information: ss. 19(1)(d) and (f).
[18] The trial judge appropriately referred to Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 44, for the proposition that a court cannot select an arbitrary figure as imputed income. She also cited this court’s decision in Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196, at para. 36, in which Lang J.A. for the court held that:When considering whether a circumstance is an appropriate one in which to impute income, a court will bear in mind the objectives of the Guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. The trial judge noted that gifts are not included in income imputation as a matter of course but may be included in certain circumstances. She imputed income to the father based on “both the adverse inference to be drawn from the repeated non-compliance with court ordered disclosure of centrally important documents, and the gift analysis”. . Chhom v. Green
In Chhom v. Green (Ont CA, 2023) the Court of Appeal considers 'occupation rent', here in a family law income context:[8] In respect of the first issue, we find that the trial judge made no reversible error in ordering the occupation rent. The appellant argued before this court that the trial judge erred in law because he did not apply the requirement that such an order be exceptional. We disagree. While it is settled law in Ontario that an order for occupation rent be reasonable, it need not be exceptional: Griffiths v. Zambosco, (2001) 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397. The appellant was unable to refer us to any Ontario authority in support of the argument to the contrary.
[9] In addition, the trial judge’s reasons concerning the occupation rent were adequate. The relevant factors to be considered when occupation rent is in issue in a family law context are: the timing of the claim for occupation rent; the duration of the occupancy; the inability of the non-resident spouse to realize on their equity in the property; any reasonable credits to be set off against occupation rent; and any other competing claims in the litigation: Griffiths v. Zambosco, at para. 49. . G.S. v. S.B.
In G.S. v. S.B. (Div Court, 2023) the Divisional Court considered an issue of 'imputed income', here in a family law context:Did the trial judge err in imputing income to the father without an evidentiary basis?
[47] In his written submissions, the father argued that the trial judge had little evidentiary basis for imputing income of $50,000 to him. He did not pursue this argument orally. I find it to be unpersuasive.
[48] The Court of Appeal has recently emphasized that “disclosure is the lynchpin of our family law system”: Ferguson v. Ferguson, 2022 ONCA 543, at para. 28. Without adequate, accurate, and timely financial disclosure, trial judges are left in the unenviable position of determining income on the limited evidence available. Here, the father did not provide the financial disclosure necessary to properly determine his income. He was on notice that this could give rise to an adverse inference.
[49] The trial judge did not choose an arbitrary figure for his income. She relied on the evidence available to her. She noted that the father previously had an income of almost $135,000 and that he appeared to have made no efforts to become employed since his nightclub closed due to COVID-19. His lifestyle was reflective of a person who had access to capital, and he owned a house worth at least $1.65 million. This evidence supported her imputation of income for support purposes in the amount of $50,000. . Jasiobedzki v. Jasiobedzka
In Jasiobedzki v. Jasiobedzka (Ont CA, 2023) the Court of Appeal considers 'occupation rent', here in a family law spousal support context:[15] If the trial judge had attributed “occupation rent” to the wife for the period when she had exclusive possession of the matrimonial home, it would have reduced the retroactive support payments. There is no basis for interfering with the trial judge’s decision not to do so. The husband misunderstands Higgins v. Higgins (2001), 2001 CanLII 28223 (ON SC), 19 R.F.L. (5th) 300 (Ont. S.C.), at para. 47. That decision does not, as the husband argues, support the proposition that “an equal joint owner” is entitled to occupation rent as of right. In the material passage, the trial judge in Higgins was in fact expressing doubt about the correctness of any such suggestion, ultimately holding, correctly, that occupation rent is merely a tool for balancing competing equities: Higgins, at para. 54. The decision whether to attribute occupation rent is a discretionary determination for the trial judge to be exercised where the trial judge considers it to be “reasonable and equitable” to do so: Griffiths v. Zambosco (2001), 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397 (C.A.), at para. 49. This court will not interfere with the exercise of such discretion “unless the finding is unreasonable, or the trial judge has erred in principle”: Griffiths, at para. 50. Here, we have no basis for interfering with the trial judge’s exercise of that discretion. She explained her view that occupation rent was not required to render justice between the parties, given that the husband had not been paying support during her period of occupancy, he participated in the delay in selling, and he profited from the appreciation in value of the matrimonial home that occurred as a result of that delay. There is no basis for interfering with these findings of fact and I would not do so. . Jasiobedzki v. Jasiobedzka
In Jasiobedzki v. Jasiobedzka (Ont CA, 2023) the Court of Appeal considered 'imputing' income (both up or down) for support calculation:[13] In identifying “fair support”, it is for a trial judge in a family law matter to decide whether to impute income, based on the evidence before them: Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at para. 51 (citations omitted); Levin v. Levin, 2020 ONCA 604, at para. 12. I see no error in the trial judge’s decision to decline to impute as income to the wife the value of the Canada Pension Plan (“CPP”) and Old Age Security (“OAS”) benefits that she was eligible to receive but chose to postpone. The trial judge offered two appropriate reasons for this decision. ....
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