By Kayleigh Pink, Associate Research Lawyer, Lam Family Law*

Fairly frequently, a parent or spouse claims that a medical condition or health needs prevents or limits their ability to work. But what kinds of evidence does a court need to accept their claim, and not impute income to them for child or spousal support purposes?

The Test for Imputing Income Based on Under/Unemployment

Pursuant to s. 19(1)(a) of the Federal Child Support Guidelines, SOR/97-175, the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, including where the spouse is intentionally under-employed or unemployed. There are a few exceptions where the under-employment or unemployment is justified, including by the reasonable health needs of a spouse.

The leading case on imputing income remains Drygala v. Pauli, 2002 CanLII 41868 (ON CA), where the Court of Appeal for Ontario set out the following three questions which should be answered by a court in considering a request to impute income (para 23):

  1. Is the spouse intentionally under-employed or unemployed?
  2. If so, is the intentional under-employment or unemployment required by virtue of reasonable educational needs or the respondent’s health needs?
  3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

The onus is on the party seeking to impute income to establish a prima facie case of intentional under-employment or unemployment. They must establish an evidentiary basis upon which this finding can be made: Mohamoud v Farah, 2023 ONCJ 103 (CanLII), at para 172, citing Homsi v. Zaya, 2009 ONCA 322 (CanLII).

Once there is an evidentiary basis establishing a prima facie case, the onus shifts to the other party to defend the income position they are taking: Mohamoud v Farah, ibid, at para 173, citing Lo v. Lo, 2011 ONSC 7663 (CanLII) & Charron v. Carriere, 2016 ONSC 4719 (CanLII).

Evidence Required to Show Reasonable Health Needs

Since Drygala v. Pauli (2002), there have been numerous cases where a prima facie case has been established or conceded, but the under-employed or unemployed spouse argues that they should not be imputed with income because their under-employment or unemployment is required by virtue of reasonable health needs.

Recently, in Mohamoud v Farah, 2023 ONCJ 103 (CanLII), Justice Kapurura reviewed what evidence is required to satisfy the court that a party’s reasonable health needs justify their decision to work less or to not work: para 195.

Justice Kapurura held that the party resisting imputation should provide cogent medical evidence in the form of a detailed medical opinion: para 195, citing various cases. The medical report should set out at least the following information: para 196, citing Davidson v. Patten, 2021 ONCJ 437 (CanLII), Curtis J.:

i. Diagnosis;
ii. Prognosis;
iii. Treatment plan (is there a treatment plan? And what is it?);
iv. Compliance with the treatment plan; and,
v. Specific and detailed information connecting the medical condition to the inability to work. (e.g., this person cannot work at the pre-injury job; this person cannot work for three months; this person cannot work at physical labour; this person cannot return to work ever.)

In Mohamoud v Farah (2023), the payor father provided a medical report from a physician at a neuromuscular clinic regarding neuropathy in the father’s wrist. Justice Kapurura found the report to be insufficient, and took issue with it being three years old by the time of trial: at paras 193-194 & 198-199.

As a further example, in Geishardt v. Ahmed, 2017 ONSC 5513 (CanLII), Justice Corbett held that a party who wishes to have their medical condition taken into account bears the onus to establish “material disability”: at para 36. This onus “cannot ordinarily be discharged solely on the basis of the party’s testimony”: at para 36. Despite the wife’s testimony that she was on medication for anxiety and depression and could not work, Justice Corbett found that the wife had not discharged her onus as she did not produce medical records nor expert evidence about her condition, prospects, or treatment: at paras 33-35 & 37-38.

Mohamoud v Farah (2023) focused on the payor resisting a claim for imputation of income. However, the same requirement for cogent medical evidence applies to a support claimant relying upon disability or illness as the basis for a spousal support claim: Karnes v. Reid, 2023 ONCJ 167 (CanLII), at paras 24-26, per Baker J., citing Davidson v. Patten, 2021 ONCJ 437 (CanLII), Curtis J.

The main takeaway is that if either party’s position is based on being unable to work due to their health needs, they ought to be prepared to provide the opposing party and court with detailed, recent, and cogent medical evidence that connects their medical condition to their inability to work.

Timing Considerations

Further, if settlement efforts fail, a party making such a claim may need to provide an updated or supplementary expert medical report or participant expert written opinion to ensure it is up to date for trial.

Keep in mind the timelines to serve and file such reports, and the minimum contents of such a report as set out in the Family Law Rules, O Reg 114/99, R. 20.2. Also, the time for an order for late filing normally needs to be made at the settlement conference, although the trial judge or judge managing the case may also order otherwise: Family Law Rules, ibid, R. 20.2(14.1).

*with thanks to Vanessa Lam and Rebecca Winninger for their suggestions and edits.