By Kayleigh Pink, Associate, Lam Family Law*

In Osanebi v Osanebi, 2023 ONSC 2546 (CanLII), Justice Akazaki heard an uncontested trial for a divorce application. The parties were married for about 6 ½ years and had two children. The father left the mother, severed all ties with the children, and relocated to Nigeria. One of the issues before the court was determining the father’s income for the purpose of child support (paras 1, 2, and 6).

Since this was an uncontested trial, the court only had the benefit of the mother’s evidence. According to the mother, the father was employed and self-employed during the marriage. The father’s specific employment history, such as field of work or previous income, was not discussed in the decision. The mother did not know what the father was currently doing for work (para 3).

Section 23 of the Federal Child Support Guidelines, SOR/97-175 (CanLII), (“FCSG”) gives the court authority to draw an adverse inference against a spouse whose income is necessary to determine child support and who has failed to provide the income information required under section 21 of the FCSG. Since the father did not engage with the court process, the court exercised its discretion pursuant to section 23 of the FCSG to draw an adverse inference against him.

Justice Akazaki noted that when a court does not have evidence of a spouse’s income, it often imputes an income “equivalent to the provincial minimum wage”. Despite case law such as Carmichael v Abel, 2022 ONSC 7034 (CanLII), where the court suggested that evidence is required to impute an income higher than minimum wage, Justice Akazaki held that minimum wage is not the “default position”. Rather, the appellate case of  Drygala v. Pauli, 2002 CanLII 41868 (ONCA) referred to various demographic and vocational criteria such as age, education, skills, and health of the parent (para 7).

Justice Akazaki gave three main reasons for taking issue with minimum wage imputation as the judicial norm, on the basis that it:

  1. “runs counter” to Statistics Canada information that minimum wage earners only represent about 10% of the Canadian workforce and the median or average hourly wage in Canada is about $30 per hour (paras 10-13);
  2. encourages spouses who earn greater than minimum wage to conceal their income or not participate in family law proceedings (para 13); and
  3. reveals an “unconscious class bias toward assuming parents who neglect their family support obligations belong to a particular social stratum” (para 15).

Instead, Justice Akazaki held that “[u]sing median income levels as the presumptive range would encourage more engagement in the process. Instead of checking out of the family process knowing that child support would be calculated on an imputation of minimum wage, a payor spouse would have to take part in the proceedings and disclose actual minimum wage earnings in order to have the income imputed at the lower amount.” (para 14).

Justice Akazaki dealt swiftly with the fact that the cost of living or minimum wage in Nigeria, where the father resided, might differ from Toronto, where the children and mother resided. His Honour stated: “If it suits the Respondent to reside in Nigeria away from his children, he should be expected to pay support based on the economic conditions of the location where the children reside” (para 16).

To determine how much income to impute to the father, Justice Akazaki first calculated the “minimum-wage floor” for a self-employed person who was paid in cash, which the father was during the marriage. This amount grossed up for income tax was $35,000 of annual income (para 17).

Next, Justice Akazaki inferred that the father’s income was “insufficient economic incentive” to stay in Canada and he stood to earn a greater standard of living in Nigeria than if he was a minimum-wage earner in the Toronto region. Based on this inference, Justice Akazaki imputed an annual income of $50,000, which was based on the $30 per hour median. Thus, for the purpose of calculating child support, the father’s income was imputed at $50,000 (paras 16–18).

Tips:

  • Do not assume that a party will be imputed with full-time, minimum-wage income, in the absence of financial disclosure.
  • Be prepared to support your client’s proposed imputed income based on factors such as their education, age, and health: see Drygala v Pauli, 2022 CanLII 41868 (ONCA), at para 45 for the full list of factors to consider.
  • Consider introducing government-published demographic data into evidence “either under the public records exception to the hearsay rule or as a matter of judicial notice”: Osanebi v Osanebi, 2023 ONSC 2546 (CanLII), at para 12. See also J.N. v. C.G., 2023 ONCA 77 (CanLII), starting at para 24.

*with thanks to Vanessa Lam for her suggestions and edits.