Can a Court Impute Income When a Spouse Quits or Underearns in Ontario?

Spousal support depends heavily on income, so it matters a great deal if one spouse leaves a job, cuts back hours, or seems to earn less than they could. Recipients often suspect a payor is underearning. Payors often feel a recipient is not trying to become self-supporting.

This article explains in general terms how Ontario courts approach imputed income. Whether it applies to you depends on the facts, and a lawyer can help you assess that.

What "imputing income" means

To impute income is to treat someone as earning an amount for support purposes even though they are not actually earning it. The Spousal Support Advisory Guidelines (SSAG) 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 SSAG are not law, but judges often base spousal support decisions on them. Whether income might be imputed to you or your spouse, and how much, depends on your situation, so it is worth confirming with a lawyer.

Spouses who are not working but should be

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

This applies to recipients too. A recipient must make reasonable efforts to contribute to their own support, and courts can impute income, commonly minimum wage, to a recipient who is not making those efforts. 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.

• Imputing an amount higher than minimum wage requires evidence.
• Whether a spouse had a reasonable basis for leaving or reducing work is a fact-specific question worth discussing with a lawyer.

Interim support and thin evidence

The SSAG apply to interim orders as well as final orders. Where income evidence is thin, ranges can be estimated using alternative income figures.

In a case under the Divorce Act, a court can make a temporary spousal support order until the support application is decided. That means a dispute about income does not necessarily leave support on hold.

If circumstances change later

Under the Divorce Act, a court can vary, rescind or suspend a spousal support order on an application by either or both former spouses. Before varying, it must be satisfied that either former spouse's circumstances have changed since the order or the last variation.

Only a court can change an order, through a motion to change. After it is issued, you must serve the other spouse within 30 days and file an Affidavit of Service (Form 6B). The other spouse has 30 days to respond, or 60 days if they live outside Canada or the United States.

What to do next

• Collect tax returns, pay records, job history and any proof of job searches or job offers.
• Note when and why work changed, including health or caregiving reasons.
• Keep records of support paid and received.
• Do not simply stop paying or change the amount on your own, since only a court can change an order.
• Get legal advice on disclosure and on whether to ask a court to impute income or vary support.

Frequently asked questions