Imputing Income in Spousal Support Cases in Ontario

When one spouse is unemployed or working fewer hours than they could, the other often asks the court to treat them as earning more than they do. This is called imputing income. It can raise or lower a support amount, so it matters whether you pay or receive.

This article explains in plain terms how imputing income generally works in Ontario spousal support cases, what evidence tends to matter, and what to gather if the issue arises in your case.

What imputing income means

Imputing income means a court assigns income to a person that they are not actually earning. Because support figures depend on income, the income a court uses can change the result a great deal.

The Spousal Support Advisory Guidelines start from the definition of income in the Federal Child Support Guidelines, and section 19 of those Guidelines is often the basis for imputing income. The Guidelines are not law, but judges often base their decisions on them.

Income is only one part of the picture. Under the Divorce Act, the court must consider each spouse's condition, means, needs and other circumstances, including how long the spouses cohabited, the roles each played and any existing order, agreement or arrangement about support. The court may not consider either spouse's misconduct, such as an affair or who left, when it makes a final or interim spousal support order.

Minimum wage and higher amounts

For a spouse who is not working but should be, a court can readily impute minimum-wage income. Imputing anything higher requires evidence.

• Evidence might include work history, education and training, and available jobs in the person's field.
• Health, age and caregiving responsibilities may explain why someone is not working.
• A higher imputed figure needs evidence behind it, not assumption.

Because anything above minimum wage requires evidence, it helps to know early what records exist. A lawyer can help you decide what is worth gathering.

Retirement can raise the same questions. If an order or agreement says nothing about retirement, retirement is usually a material change that can support a variation. Courts closely examine early retirement, though: if it is voluntary and not necessary or reasonable, the court may find no material change and leave support unchanged, while health problems can justify early retirement.

Recipients and self-sufficiency

A recipient must make reasonable efforts to contribute to their own support. Courts can impute income, commonly minimum wage, to a recipient who is not making those efforts.

Support orders are meant, so far as practicable, to promote each spouse's economic self-sufficiency within a reasonable period, while also recognizing economic advantages or disadvantages from the marriage and relieving hardship from its breakdown. Once a recipient becomes self-sufficient, support can be terminated, but the decision is individualized and courts often decide 'not yet', reducing support or setting a future end date instead.

If circumstances change later, a court can vary, rescind or suspend a spousal support order on the application of either or both former spouses. Before varying an order, the court must be satisfied that either former spouse's circumstances have changed since the order or the last variation, and it must take that change into account.

Interim support, limits and calculators

The Guidelines apply to interim orders as well as final orders. Where income evidence is thin, ranges can be estimated using alternative income figures. Any period of interim support, and informal voluntary support, counts toward the Guidelines' duration limits.

Several cautions apply:

• An income gap on its own does not create entitlement to spousal support; entitlement must be proven or agreed first.
• The formulas do not apply mechanically at the extremes: above a payor income of $350,000 discretion is used, and incomes below $20,000 and $30,000 require adjustments.
• A zero range under the with-child-support formula is not the same as no entitlement; it may reflect a current inability to pay.
• The free online calculator linked from Ontario's spousal support page considers only employment income and simple calculations.

When both child and spousal support are in play, a court must give child support priority. Imputed income can affect both calculations, so the issues are often argued together.

What to do next

• Collect tax returns, notices of assessment and pay records for you and, if you have them, your former spouse.
• Write down your work history, education, health limits and caregiving duties, and when each applied.
• Keep records of job searches, applications and any training you have taken.
• Gather any evidence of what comparable jobs pay.
• Speak with a lawyer before agreeing to a support figure based on assumed income.

How imputed income applies to you depends on your situation, including your work history, health and family responsibilities, so it is worth confirming with a lawyer before you rely on any figure.

Frequently asked questions