In a recent Ontario case, the court was asked to consider two interesting claims by a husband who was looking to avoid paying support arrears: 1) that he couldn’t earn more money because he was “blacklisted” in his industry; and 2) that his post-bankruptcy decision to go back to school full-time was reasonable.
The background facts were these: The husband had been paying about $800 per month in spousal support based on an annual income of about $56,000. For several years, his income had hovered around that point, but he lost his job in 2009, and claimed that he could not find work in the construction industry anywhere in the Greater Toronto Area because his “name in the industry was tarnished”. He claimed that in order to do manual work, he would have to join the union. He therefore did not pursue any manual labour jobs in construction.
Instead, he worked at various jobs until he declared bankruptcy in 2011, then went back to school full-time for the Law Clerk/Paralegal Program. Although he did not finish the program, he intended to do so on a part-time basis, aiming to complete it in 2015. His income therefore dropped for a few years to near $20,000, and he was currently working at a building supply store and expecting to earn $35,000 in 2013. (As an aside, the husband also admitted to spending $175,000 in less than 2 years, with $30,000 being spent towards a condominium, and $145,000 going toward three lawyers for his file.)
The wife, who earned about the same amount as a funeral home receptionist, asked the court to enforce the arrears in spousal support that had accumulated in the past few years, and also asked to have income imputed to the under-earning husband. She claimed that his decision to go back to school full-time to become a Law Clerk or Paralegal was unreasonable in the circumstances, given that it meant he would not be able to meet his obligations to support his family.
The court concluded that it was indeed unreasonable for the husband to go back to school full-time, and that in any event he had not made a diligent effort to complete the program and find employment in the field. He was also under-earning even in the work he did have at present. Still, the court declined to impute the full $65,000 income to him; rather it assumed he could have been earning just over $40,000 per year. As for the husband’s contention that his name had been tarnished, the court said:
The husband’s position that he was blacklisted from ever being hired in the construction industry is speculation and conjecture. It is difficult to accept that testimony without some corroboration. The construction industry in the GTA is a large industry and it is difficult to understand how he could be blacklisted throughout the entirety of that industry. I also cannot accept that [the husband] would have been unable to work in the construction industry in some other capacity other than as a Project Co-ordinator or Manager.
As a result, the court adjusted the support accordingly and ordered the husband to pay a portion of arrears, pointing out that an order for him to pay full arrears would “crush” him.
For the full text of the decision, see:
Bozzelli v. Bozzelli (2014), 2014 ONSC 254 http://canlii.ca/t/g2psf
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