BACKGROUND
This case involves a dispute over child support for a 28-year-old son with PDD-Nos (Pervasive Development Disorder, non-specific), who has always lived primarily with his mother since the parties’ separation. A 1999 separation agreement, incorporated into a divorce order in 2000, initially set the terms for support. In 2012, Justice Murray ordered the father to pay $462 monthly based on a $50,000 imputed income, plus 75% of Section 7 expenses, based on the parties’ minutes of settlement.
In September 2023, the father sought to reduce support to zero, citing his declining income and the son's government benefits. The mother opposed, arguing the father was uninvolved and had not sought alternative employment. In May 2024, the father amended his request, seeking a reduction to $200/month and an $8,458 overpayment credit. The mother countered with retroactive support from 2015 and a final order preventing further litigation.
THE LAW AND ANALYSIS
Courts have broad discretion in imputing income but must base their decision on evidence rather than arbitrary figures. The party seeking to impute income bears the burden of proof. Courts assess the payor’s earning capacity by considering factors such as employment history, skills, health, and standard of living. The amount imputed must align with the payor’s actual means and the objectives of the Child Support Guidelines, ensuring fair and consistent support.
In this case, the court resolved the income dispute by imputing the father’s income at $30,000—a figure he ultimately consented to at trial. The mother had suggested $34,000, arguing that he could earn at least minimum wage, but she provided no supporting evidence. The court cautioned against assuming that individuals can necessarily secure full-time minimum wage employment, stating at paragraph 27(d):
“[P]articularly in the current economy, courts should not default to making assumptions that people can earn a minimum wage income at full-time hours. The reality is that there are now far more part-time workers that come before the court.”
For child support, the court acknowledged that support obligations for adult children under the Divorce Act and Child Support Guidelines depend on the child’s dependency, financial needs, and available resources. Given that the son receives $1,037 per month from the Ontario Disability Support Program (ODSP), the standard table amount was deemed inappropriate by the court. The court also referenced Senos v Karcz, 2014 ONCA 459, which established that ODSP does not eliminate child support but must be factored into its calculation. Balancing the financial struggles of both parents with the son’s ongoing needs, the court found the father’s proposal of $200 per month to be reasonable.
Regarding the father’s claim of an $8,458 overpayment, the court ordered repayment at $50 per month to avoid undue financial hardship for the child. Additional orders included annual financial disclosure requirements and provisions for future variations based on material changes in circumstances.
CONCLUSION
At the time of trial, both parties were self-represented. Several issues were either resolved or not vigorously pursued, leaving the trial judge to address ambiguities and evidentiary deficiencies.
This case underscores the complexities of family law litigation and the importance of legal representation. After nearly 18 months of legal proceedings, the judge revealed that the parties were, in fact, not as far apart in their positions as initially perceived. This outcome emphasizes how experienced counsel can play a pivotal role in guiding clients through complex disputes, ultimately facilitating more efficient resolutions and reducing prolonged litigation.