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Court Disbelieves Father Claims About Income for Support Purposes – Concludes Lack of Job Search Means Father Already Earns a Good Living

Court Disbelieves Father Claims About Income for Support Purposes – Concludes Lack of Job Search Means Father Already Earns a Good Living

A case from a few weeks ago illustrates how a court will analyze the financial information provided by the parties to matrimonial litigation – and will disregard evidence that just doesn’t add up.

Here, the 42-year old mother and 53-year old father had been married for almost 15 years at the point of separation.   They had four children together, ranging in age from 16 down to 8.  

The mother claimed asked for support for the children from the father, but his income for those purposes was in dispute:  the mother claimed that he earned between $40,000 to $50,000 as a taxi driver; the father claimed he earned only about $16,000 to $17,000 per year.  Moreover, the father filed information with the court to show that for the past 4 years, he had actually earned only about $9,000 per year.

The court was asked to settle the discrepancy.

First of all, the court evaluated the mother’s evidence as credible, and given in a clear, consistent and compelling manner.  The court found her evidence “made sense”.  

In contrast, the court concluded that “the father’s evidence made little sense.”

In pointing out the various inconsistencies in the father’s evidence, the court observed:

[29]      … He is an experienced taxi driver, well-educated and very intelligent. I doubt that he would continue to work at a job that only paid him $9,000 per annum, when he is capable of earning much more and, based on his evidence, was spending much more.

[30]      The father’s evidence was internally inconsistent. He claimed that starting in the middle of 2009 he cut his work hours (and income) in half. However, his notices of assessment show little difference in income from the years when he said that he was working on a full-time basis.

[31]      The father testified about his monthly budget. It was far in excess of the income he stated he has earned. It made little sense as well that the father would be earning $9,000 per annum, and paying $7,200 per annum (as he claims) in child support. It was interesting that when faced with this mathematical difficultly, the father revealed for the first time the existence of a bank account in the United States. This account had not been previously disclosed to the mother.

[32]      The father also failed to provide meaningful documentation of his income and expenses. Any documentation that he provided (such as his statement of business affairs) was self-reported. I agree with the mother that this evidence was highly unreliable.

[33]      Simply put, the father’s numbers didn’t come close to adding up.

[34]      The expenses that the father claimed that he has been spending, including $600 per month for support, are consistent with someone earning the income that the mother seeks to impute to him.

The court also found that the father had not provided a reasonable explanation for only working part-time and purportedly earning $9,000 per year.   Nor had he produced proof that he was looking for other work, which the court concluded that a person unhappily employed part-time at a low wage would otherwise do.

In the end, the court concluded that the logical inference from all of the father’s evidence was obvious:  he was not looking for other work, because he was already earning a comfortable income at his current job.

As such, the court was prepared to impute an income to the father of $40,000 per year.  Still, it acknowledged:

“The father faces a harsh economic reality. He has four children to support. He is facing child support arrears and expensive orthodontic costs. At the income imputed to him, it will be difficult for him to afford these payments.”

The court therefore granted the father an indulgence, and allowed him to delay the payment of the support arrears he owed for one year.  However, if the father failed to comply with the other support provisions in the order, he would lose the indulgence and the full amount of the arrears would immediately become due and payable.

Ga’al v. Asser, 2012 ONCJ 481

For the full text of the decision, see  http://canlii.ca/t/fs4sk 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com

One Comment
  1. In this case, it seems like the father was either lying or he neglected to call necessary evidence.

    However: it seems like a potential slippery slope when a judge can simply “impute” additional income to this degree. This might lead to some very unjust outcomes in the case of a parent who was telling the truth about a modest income.

    There should be some onus on the other parent (in this case the mother) to demonstrate that the imputed income in fact exists.

    August 2, 2012

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