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Family - Income. Kohli v. Thom [imputation]
In Kohli v. Thom (Ont CA, 2025) the Ontario Court of Appeal partly allows a family law appeal, here from "an order, which, among other things, dismissed her request to relocate with her young son to New Brunswick and rejected her claim for spousal support from her former spouse".
Here the court considers 'imputation of income' for support calculation purposes, and the effect of family violence on it:[108] The decision to impute income as part of the calculation of support is discretionary. The only limitation to that discretion is that there must be some evidentiary basis for the amount of income imputed: Monahan-Joudrey v. Joudrey, 2012 ONSC 5984, at para. 21; see also Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at paras. 27-28; and Staples v. Callender, 2010 NSCA 49, 85 R.F.L. (6th) 236, at paras. 21-22.
[109] The imputation of income for support purposes is a finding of fact made by the trial judge: Pirner v. Pirner (2005), 2005 CanLII 44166 (ON CA), 22 R.F.L. (6th) 291 (Ont. C.A), at para. 20. It is not an exact science, and this court has repeatedly upheld a trial judge’s findings that “fairly reflect” the parties’ financial circumstances per ss. 15-18 of the Guidelines: see Mason, at para. 154; Ludmer v. Ludmer, 2014 ONCA 827, 52 R.F.L. (7th) 17, at para. 25.
[110] The trial judge relied on s. 19(1)(a) of the Guidelines, as amended, when imputing income. Section 19(1)(a) reads as follows:19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse[.] [111] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made: see Homsi, at para. 28, citing Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (Ont. C.A.).
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(2) Error in imputing income to the appellant
[122] Turning to the appellant’s income, the respondent argued that the appellant was “deliberately underemployed” and that, pursuant to s. 19(1)(a) of the Guidelines, she should be imputed an income consistent with the minimum wage in Ontario, equivalent to $31,000 annually. Further, the respondent asserted that any s. 7 expenses should be paid by the parties on a proportionate basis. The trial judge accepted this submission. In so doing, in our view, he lost sight of his earlier findings of family violence.
[123] This court, in Drygala, at para. 23, set out the following three questions that should be answered by a court in considering a request to impute income:1) Is the party intentionally under-employed or unemployed?
2) If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs, the needs of the child or reasonable health needs?
3) If not, what income is appropriately imputed? See also Lavie v. Lavie, 2018 ONCA 10, at para. 28.
[124] Intentional unemployment is particularly complex. The court need not be satisfied that a payor spouse has acted in bad faith before it imposes a support order based on imputed income: Drygala, at paras. 29-30, and 36. Rather, the court must consider whether the parent’s decisions around work choices are reasonable: Drygala, at paras. 38-40; see also Duffy v, Duffy, 2009 NLCA 48, 73 R.F.L. (6th) 233, at para. 25; Tillmanns, at paras. 59-60.
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[133] In our view, appellate intervention is warranted in these circumstances. Having acknowledged the underlying facts of the family violence and the impact of this violence on the appellant, the trial judge failed to consider the significance of these findings for the imputation of income. The expectation that the appellant continued to be able to work in full-time minimum wage settings after January 1, 2022, just as she had in 2011, was unjustified on the record before him. Additionally, there was no evidence before the trial judge of a change in the mental health of the appellant in January 1, 2022. The trial judge referred to other relevant factors, such as changes in the economy and the availability of employment in 2022, but failed to grapple with the potential relevance of family violence to the appellant’s ability to work.
[134] Relying on A.C. v. K.C., 2023 ONSC 6017, the appellant argues that the consequences of family violence that the trial judge had already accepted, should have been considered.
[135] In A.C., Mandhane J. reviewed the general propositions relating to family violence in the context of child and spousal support determinations, and set out the following general propositions, at para. 111:In my view, it is possible to interpret the Divorce Act and FLA consistently with one another, as well as with the Supreme Court of Canada’s decision in Leskun and the caselaw from this court. Taken together and interpreted consistently, the provisions lead to the following general propositions:. Pursuant to the Divorce Act and FLA, misconduct itself cannot disentitle a spouse to receipt of spousal support.
. Pursuant to the Divorce Act and FLA, misconduct itself cannot entitle a spouse to receipt of spousal support or to support at a higher range or for a longer duration.
. The emotional and psychological consequences of the misconduct can be considered if they are relevant to the other factors set out in s. 15.2(4) of the Divorce Act or s. 33(9) of the FLA.
. At least in Ontario, unconscionable misconduct that is an obvious and gross repudiation of the relationship can be considered when determining the amount of support, but only if that conduct is relevant to the economic fallout of the marriage. [Citations omitted.] [136] Further to the third proposition, under the Divorce Act, a trial judge should not take into consideration “any misconduct of a spouse in relation to the marriage” when making a spousal support order: s. 15.2(5). In Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, para. 21, the court considered the proper interpretation of this provision in the context of allegations of spousal abuse:There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself. The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct. If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount. The policy of the 1985 Act however, is to focus on the consequences of the spousal misconduct not the attribution of fault. [Emphasis in original.] ....
[138] There is a duty on parents to seek employment where they are healthy and able to do so: Drygala, at para. 38. If the trial judge had any doubts as to the existence or severity of the family violence, it would be reasonable to expect a party to substantiate the emotional and psychological effects of that violence with medical evidence or evidence of qualifying for benefits based on medical evidence. In this case, however, having found that the appellant survived sustained family violence at the hands of the respondent, it was unreasonable for the trial judge not to grapple with the potential effect of this violence on the appellant’s ability to work. Instead, he concluded that she was healthy enough to work on a full-time basis, simply because she had failed to apply for social benefits on the basis of her mental health, and had failed to provide specific, medical evidence of her condition. Again, in this context, it is worth reiterating that the onus is not on the appellant to establish her lack of income. The trial judge found as facts that the appellant had not worked since 2011 and was receiving no income from employment. Rather, the onus was on the respondent to establish that the appellant was intentionally underemployed or unemployed. In our view, the trial judge committed a palpable and overriding error in finding the respondent had met that onus on this record.
[139] Finally, the trial judge’s personal observations of the appellant’s capabilities at trial were not a sound evidentiary basis on which to infer that she was intentionally unemployed: see Homsi, at para. 28.
[140] Consequently, we would reverse this aspect of the trial judge’s decision and substitute a finding that no income should be imputed to the appellant. . Kohli v. Thom
In Kohli v. Thom (Ont CA, 2025) the Ontario Court of Appeal partly allows a family law appeal, here from "an order, which, among other things, dismissed her request to relocate with her young son to New Brunswick and rejected her claim for spousal support from her former spouse".
The court considers the appellate SOR for support (here, 'imputation of income') issues:[105] The standard of review governing the imputation of income must be seen within the broader context of the deference to be afforded a trial judge’s order for spousal support. This deferential approach to support awards promotes finality in family law litigation and recognizes the importance of the trial judge’s role in seeing and hearing the parties and other witnesses testify.
[106] An appeal court is not entitled to overturn a spousal support order simply because it would have balanced the relevant factors differently or arrived at a different decision: Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10-12; Mason v. Mason, 2016 ONCA 725, 403 D.L.R. (4th) 64, at para. 110. As the court explained in Hickey, at para. 12:There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently. [107] At the same time, an appeal court must intervene where the trial judge’s reasons disclose an error in principle, a significant misapprehension of the evidence or if the award is clearly wrong: Hickey, at para. 11; Mason, at para. 111. . 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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