When one spouse is not earning what they could, the court may “impute” income. But that process is not automatic and it is not based on assumptions.
In Kohli v Thom, the Ontario Court of Appeal reinforced a key principle: the party asking the court to impute income must prove it.
The Case in Context
Kohli v Thom involved a dispute over relocation and support following separation.
At trial:
- income was imputed to the husband at approximately $76,000
- the wife’s income was about $31,000
- child support was set on a set-off basis
- no spousal support was ordered
Both parties took issue with how income was treated.
Imputing Income Requires Evidence
A central issue was whether the husband’s income should be higher.
The wife argued:
- the husband could earn closer to $100,000
- a higher income should be imputed
The husband argued for a lower figure.
The Court of Appeal upheld the trial judge’s imputed income of about $76,000.
The reason is simple. The wife did not meet the burden of proving a higher income was appropriate.
The Onus Matters
The Court made it clear that:
- the party seeking to impute income carries the burden
- the court cannot simply “pick a number”
- there must be evidence supporting earning capacity
Without that evidence, the court will not increase the imputed income.
You Cannot Impute Income Without a Proper Foundation
Another issue raised was whether income should be imputed at a minimal level or even zero.
The Court emphasized that:
- imputation decisions must be grounded in the facts
- factors like employability, circumstances, and barriers to work matter
- broad arguments without evidence will fail
This aligns with prior Ontario decisions confirming that imputation is a fact-specific exercise, not a default position.
Impact on Support Outcomes
Because the imputed income remained at approximately $76,000:
- child support was calculated on that basis
- the overall financial balance between the parties remained relatively close
- no spousal support was ordered
This shows how critical income findings are. A different number could have changed the entire result.
Why This Case Matters
Kohli v Thom reinforces several practical points:
- Imputing income is not automatic
- The burden lies on the party asking for it
- Courts require concrete evidence of earning capacity
- Small changes in income findings can significantly affect support
The Bottom Line
If you want a court to impute income:
- you need evidence of what the person can realistically earn
- you must connect that evidence to their skills, experience, and opportunities
- you cannot rely on assumptions or broad claims
Without that foundation, the court will not adjust income.
For more insights on income imputation, child support, and spousal support in Ontario, visit FamilyLLB.com or connect with Russell Alexander Collaborative Family Lawyers.
