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), (“CSG”) 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 CSG. Since the father did not engage with the court process, the court exercised its discretion pursuant to section 23 of the CSG to draw an adverse inference against him.
Justice Akazaki noted that when a court does not have evidence of a spouse’s income, it oftentimes imputes an income “equivalent to the provincial minimum wage” (para 7). Justice Akazaki took issue with this common judicial approach for three main reasons:
- it “runs counter” to the statistics in Canada that show minimum wage earners only represent about 10% of the Canadian workforce (para 13);
- it encourages spouses who earn greater than minimum wage to conceal their income or not participate in family law proceedings (para 13); and
- it reveals an “unconscious class bias toward assuming parents who neglect their family support obligations belong to a particular social stratum” (para 15).
Despite the recent case of 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 confirmed that minimum wage is not the “default position” and he suggested using median income levels as the presumptive range (para 7).
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 calculated the “minimum-wage floor” for a self-employed person who was paid in cash, which the father was during the marriage. This totalled $35,000 of annual income (para 17).
Justice Akazaki then 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. Based on this inference, Justice Akazaki imputed an annual income of $50,000 to the father for the purpose of calculating child support (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).
- If the opposing party does not provide full financial disclosure, consider seeking an imputed income higher than minimum-wage. You may want to introduce government-published demographic data to support your proposed imputation of income.
- You can enter 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).
