Ropchan v Moen, 2022 ABKB 811

Court of King’s Bench of Alberta Citation: Ropchan v Moen, 2022 ABKB 811 Date: 20221202 Docket: FL03 29837 Registry: Edmonton Between: Nikki Ropchan Applicant - and - Kelly Moen Respondent _______________________________________________________ Endorsement of the Honourable Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] A child-support payor decided to return to school full-time to enhance his long-term employment prospects. He submits that no support should be paid until he completes his schooling in three or four years.

[ 2 ] The support recipient objects to his plan, seeking the imputation of full-time income or, alternatively, of part-time income squaring with the payor’s studies. [ 3 ] Applying the guidance of the Alberta Court of Appeal in Peters v Atchooay , 2022 ABCA 347 and the cases excerpted in Appendix A, it is reasonable both that the payor return to school to upgrade his schooling and, after that, pursue a construction- engineering program and that, while he is pursuing his upgrading and that program, he work part-time work compatible with pursuit of those studies. B.

Analysis Reasonableness of payor’s return-to-school plan [ 4 ] Here is my reasoning on the reasonableness of Mr.

Moen’s educational pursuits: 1. the upgrading courses he is currently pursuing are necessitated by his having not completed high school (or, at least, all of the necessary high school courses), with the completion of high school or at least a material subset of high school courses being a prerequisite for pursuing his target (construction-engineering) program; 2. as I understand it, his open-studies program at NAIT allows him to complete those courses and take courses that will give him credit in his target program; 3. no evidence shows that he is not pursuing his current studies with diligence; 4. the target program aligns with and will build on his (construction-focused) working life to date; 5.

I infer that completion of that program will boost him into a materially higher realm of earnings i.e. I accept his position that “un- ticketed” or “uncredentialed” (my terms) persons working in the construction field earn materially less than persons with formal education and “credentialling” in the field; 6. I do not see his course of action here as unreasonable because of his age (49, per Ms. Ropchan).

While it may have been better for him to have re-launched educationally earlier (and perhaps even long ago), he would appear to have a long working life still to come, over which he and his dependants (or at least some of them) will benefit from materially increased earnings; 7. no evidence shows the availability of the current upgrading / open-studies courses in evening or weekend times (such that he should be expected to continue working full-time during regular working hours and pursue his studies “after-hours”); 8. in any case, such an (alternative) path would presumably mean stretching out his overall educational timeline i.e., pushing out even further the eventual dividends from higher earnings; and 9. no evidence shows any other alternative pathway here that would move him any faster towards eligibility for his target program.

Reasonable to expect part-time work by payor [ 5 ] However, it is also reasonable to expect Mr.

Moen to generate part-time-work earnings while he is pursuing his studies: 1. per his follow-up letter, even recognizing he may have some child-care-related duties in the evenings, I conclude that he has the capacity to work at least some evenings (with his spouse presumably able to handle some of those duties some evenings, whether on her own or with the assistance of family or friends, or with her possibly doing her coursework and studying, or some of it, after their child is asleep) and on weekends; 2. many students pursuing full-time studies are able to manage part-time work along with their studies i.e., it is not an exceptional or extraordinary phenomenon for work and studies to be combined; 3. in any case, no evidence showed that the current upgrading / initial course work program is so intensive and demanding that “all waking hours” must be devoted to it; 4. with the parties’ older daughter at 19 and younger daughter at 14 (as of March 2022), it is not appropriate to approve a full (education-related) deferral of child support for three or four years, with them or at least one of them possibly “ageing out” i.e., being no longer eligible for support; 5. in any case, the children need and deserve support now; and 6. while he was not sure of precisely what his course load may be next spring and summer, as I recall his understanding was that the May-to-August period may be free or at least largely free, during which he can pursue full-time work.

In any case, he had the onus of showing, with evidence, any unavailability for work during what are traditionally “off” months for post-secondary studies. Appropriate imputed income [ 6 ] As for the extent of part-time work expected and reasonably expected earnings, here are the key factors: 1. Mr. Moen has extensive construction-industry experience, albeit (as noted) he currently lacks formal credentials;

2. regardless, this Court imputed his earnings for some or all of 2019 at approximately $90,000, his actual earnings for that year were (or were close to) $70,000, and his earnings for 2020 came in around $66,000, before tailing off sharply in 2021 and 2022 i.e., he has demonstrated the capacity to generate much-higher-than-minimum-wage earnings in some recent years; 3. on the other hand, I do not have any, or any material, evidence of the state of the job market for persons with Mr. Moen’s current credentials.

In any case, it is not obvious that, with the focus on part-time work, he can necessarily find construction-industry work that will pay in the neighbourhood of his historical earnings (i.e., the same or similar hourly or weekly earnings); 4. Ms. Ropchan expressly or at least implicitly accepted that Mr. Moen should be expected to pursue some level of work, at some level of income i.e., she appeared to recognize that, if the focus is on part-time work (i.e., pursued while pursuing full-time studies), it is likely not possible for Mr.

Moen to generate the same level of earnings (i.e., on an hourly or weekly basis) with such work; 5. one benchmark is that outlined by Ms. Ropchan in her follow-up letter i.e., minimum-wage-level earnings ($15/hour) at 20 hours per week i.e., $300 weekly, which she translated to $1,200 per month. That would translate to annual part-time earnings of $14,400.

If May-to-August (inclusive) were viewed as full-time-work months (i.e., 37.5 hours per week x $15 per hour x 17 weeks i.e., earnings of $9,562.50 in those four months), the annual income would be $20,062.50 i.e., $9,562.50 for May to August plus $10,500 for the balance of the year i.e., $15/hour x 20 hours/week x 35 weeks; 6. given his age and experience, I believe Mr. Moen may have the capacity to earn a higher level of income (hourly-wise) than minimum wage.

However, I do not have enough evidence to predict with sufficient certainty how his age, experience and overall attributes, viewed through a part-time lens, will or would be recognized in the current economy; and 7. I believe it is better, for now, especially to provide sufficient flexibility in scheduling part-time work around his studies and new- family commitments, to expect minimum-wage-level earnings from Mr. Moen. It may be that he earns more and, as a result, is able to pay more support (as discussed further below). [ 7 ] In all the circumstances here, a reasonable imputed income for Mr. Moen is $21,000.

In fact, it is very likely on the bottom edge of reasonableness. [ 8 ] By my calculation, income at that level translates to monthly support for two children of $341 per month, which I will round to $350. No pursuit of existing child-support arrears [ 9 ] The backdrop of this application is a stay that is or was in effect of MEP enforcement steps to collect ongoing support and arrears. [ 10 ] Given Mr. Moen’s relatively limited ability to pay at present (as explored above), I do not see arrears payments as warranted at present.

Section 7 expenses not immediately recoverable [ 11 ] On the

section 7 front, given that limited ability to pay, I am not directing any

section 7 contributions from Mr. Moen at present or while his income continues at the level imputed or otherwise remains below $30,000 (effectively, full-time minimum-wage earnings). [ 12 ] However, I reserve Ms. Ropchan’s right to seek

section 7 contributions from Mr. Moen retroactively i.e., if and when his income increases above $30,000. [ 13 ] She can submit her

section 7 expense receipts to MEP as she incurs then, with MEP tracking them for possible down-the-road recovery (proportionate to the prevailing incomes at the time the expenses were incurred) from Mr. Moen i.e., once he has completed his upgrading – open studies – construction engineering studies or, in any case, if his income increases above $30,000. C. Conclusion Child support now payable [ 14 ] The appropriate outcome now is to continue (or reinstate) the stay of MEP action on accumulated arrears on the condition that, effective January 1, 2023, and thereafter, Mr.

Moen pay child support of $350 (or other adjusted amount, as contemplated below) on the first of each month, until further court order. Tax-return filing and recalculation [ 15 ] Both parties shall file their personal tax returns by the statutory deadline each year (on or about April 30 th ) and, by June 30 each year, provide each other and MEP with copies of their tax returns and their CRA notices of assessment. [ 16 ] MEP shall recalculate the child support payable, as necessary i.e., to square with Mr.

Moen’s tax-reported-and-assessed income and to implement section-7-expense recovery, as applicable (i.e., as contemplated above).

Child-support obligation to be factored into education-funding applications [ 17 ] If Mr.

Moen’s applications for student loans, bursaries, grants or other funding to date have not factored in his child-support obligations for the parties’ daughters (i.e. as part of his overall financial obligations) i.e. to the extent any such funding may turn in whole or in part on the existence of those obligations (i.e. may spark additional or increased funding for him i.e. in turn to assist with paying child support), he shall pursue any such available funding retroactively (if possible) and, in any case, shall factor in those obligations in any future applications for funding. [ 18 ] Mr.

Moen shall also report the outcome of any new or revisited application(

s) for expanded or new funding (i.e., to the extent reflecting additional funding to assist with the payment of pre-existing or ongoing child-support obligations) to both Ms. Ropchan and MEP. Closing matters [ 19 ] I will arrange for the Court’s administration to prepare an order reflecting these directions, which will be circulated to the parties as well as to MEP. [ 20 ] I am not seizing myself with any further applications that may be necessary on this file. [ 21 ] I thank the parties for their helpful submissions at the application and via their follow-up letters.

Heard by way of WebEx on the 25 th day of November, 2022 and follow-up letters received on the 28 th and 29 th days of November, 2022 Dated at Edmonton, Alberta this 2 nd day of December, 2022. M. J. Lema J.C.K.B.A. Appearances: Nikki Ropchan Self-Represented Applicant Kelly Moen Self-Represented Respondent Appendix A Imputation of income analysis -- Guideline provision and case-law extracts Imputing income Federal Child Support Guidelines, SOR/97-175 19

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances

include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment isrequired by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or healthneeds of the spouse …. Cases examining “reasonable education … needs of the spouse” Carter v Spracklin, 2012 ONCJ 193 (Sherr J.) [32] The second part of the test in Drygala v.

Pauli, supra, is: “If the payor is intentionally unemployed or under-employed, is this byvirtue of his/or her reasonable educational needs, the needs of the child of the marriage or reasonable health needs”? The onus toestablish the reasonableness of the excuse is on the payor. [33] The respondent deposed in his affidavit sworn on October 27, 2011, that he would be going back to school in January of2012 to take a two-year course to become a computer technician. He testified that he did not start school in January as hiscounselor didn’t submit the necessary paperwork.

He testified that he had planned to start the course in March of 2012, but thatthis plan was derailed when he was charged with breach of probation in February of 2012. The father claimed that his counselortold him to defer going to school until the criminal case ended. The father said that it might take some time for the case to beresolved. He testified, “You never know how long the court case will go”. The father testified that he was not very employablewhile he had to go to court dates and attend anger management (a term of his probation).

He added that he did not want tojeopardize his funding for school by missing classes due to these commitments. [34] It became clear that the respondent had no intention of going to school or seriously looking for work while his criminalcharge is outstanding. This is not a reasonable position. [35] The respondent’s plan to eventually go back to school and not pay child support for two years is also not reasonable.

Hehas not established that the time it would take to complete this program (and where his children would not receive support) isjustified by an increase in earning capacity that he would attain by completing this course. His children need supportnow. See: Hanson v. Hanson, (BCSC); Gobin v. Gobin 2009 ONCJ 245 , [2009] O.J. No. 2191 (OCJ).Further, based on the evidence to date, the court is skeptical that the respondent would follow through with and complete thiseducational program. He deposed that he was late in registering for an automotive program in the fall of 2011.

He has notattended the computer technician program that he claimed he would start in January of 2012 (blaming his counselor) and didn’tappear to be prepared to begin it anytime soon. Gobin v. Gobin, 2009 ONCJ 245 (May 26, 2009) (Sherr J.) [21] The father testified that his new plan is to obtain a master’s degree (which would be completed in 2011) and a Ph.D. insoftware engineering (which would be completed at some indefinite time in the future). His plan then is to teach. This is a totallyunrealistic plan. He is 36 years old. He began the university path in 2002.

This plan would mean that the children wouldcontinue to have reduced child support for another 2 to 4 years. This is not reasonable. Further, there is no evidentiary basis forthis court to believe that the father would ever complete this plan. He has chosen to virtually abandon his education the past twoyears, knowing that the child support issue was before the court. He has not registered for any summer courses in 2009. Hischildren require a reasonable level of child support now. M.T. v. J.L.-T., 2018 ONCJ 654 (Zisman J.) [14] The father is 43 years old.

He has a grade 12 education and a certificate as a Personal Service Worker. He was employed atBob Rumball Association for the Deaf (BRAD) as a counsellor from December 24, 2011, to July 13, 2016. He is currently in receipt ofODSP and has some limited employment income. [15] Since leaving his employment at BRAD, the father has been upgrading his education. In January 2018, he enrolled at GeorgeBrown College and testified that he was taking courses for communication, math and American Sign Language. He is training to be adeaf interpreter.

On May 16, 2018, he began training as a sign language instructor and he has obtained some employment at $22 perhour through the Canadian Hearing Society. [16] The evidence with respect to the father’s income is as follows: 2012: $49,582 2013: $47,582 2014: $45,853 2015: $45,960 2016: $32,940 (T4 $6,444 for Employment Insurance and BRAD $26,496) 2017: $13,206 Application of findings of fact to the legal principles [28] There were serious concerns about the father’s credibility throughout his evidence. I found his evidence to be vague, evasive,

self-serving and without corroboration on significant issues. He continually blamed others when confronted with contradictions between his testimony and the documentary evidence. [29 ] I find the father is intentionally under-employed for the following reasons: 1) The father “quit” his well-paying employment at BRAD that provided him and his family with medical befits and vacation pay. Although the Record of Employment filed by the father indicated that he “quit” in July 2016 the father maintained that he only took a medical leave of absence due to the stress of the job.

The father never requested that the Record of Employment be corrected, nor did he summons his employer or the author of the Record of Employment as a witness; 2) Even if the father only took a leave of absence, he never returned to his position on a full-time basis; 3) Both parties testified that it is extremely difficult for a deaf person to find employment.

The father testified that he was “lucky” to obtain employment in 2012 with BRAD; therefore, it was reckless and unreasonable for the father to leave such a well-paying job at BRAD; 4) The timing of the father leaving his job is relevant as he did so shortly after being charged with assaulting the mother with a weapon; and 5) The father admitted in cross-examination that although throughout the relationship he found the job at BRAD stressful, he continued working as he had a responsibility to support his children and yet he left that job after the separation while having the same obligation to support his children. [30] Having found that the father is under-employed, the onus shifts to him to prove on a balance of probabilities his under- employment is reasonable due to his educational or medical needs. [31] I find that the father has not met the onus on him to prove that his under-employment is reasonable for the following reasons: 1) Although the father deposed and filed a letter from George Brown indicating he that as of January 29, 2018, he was enrolled in the Deaf Upgrading program, he only provided proof he was taking one course once a week and there were no further details as to the time commitment; … Conclusion [34] The father left a well-paying unionized job that provided himself and his children with employment benefits.

Despite being aware of the obstacles facing a deaf person with finding employment, the father left BRAD without having first secured another job and without making efforts to improve his work conditions at BRAD.

Although the break-up of the marriage and his criminal changes may have been difficult for him to deal with emotionally, he recklessly and without any thought for the well- being of his children preferred his needs over those of his children. [35] Since leaving his secure employment at BRAD he has made limited attempts to find alternate employment at the same level of salary. [36 ] Although he is now working, it is only for very limited hours, but he has the possibility of earning in the same range as he earned at BRAD if he uses all of his skills and training and obtains full-time employment. [37] I find that it is therefore appropriate to impute income to the father in the amount of $47,129 being his average income for the last three years he was employed at BRAD.

Such amount to be payable as of the commencement of this Application and with credit for any amounts he has already paid. Lee v Lee , 2001 BCSC 295 (Skipp J.) [70] In his reasons for judgment, Sigurdson, J. set out at para. 16: Mrs. Lee disposes [ sic ] that her husband told her after they separated that he would wind down his business activities and would begin attending U.B.C. to get his Ph.D. degree. She says that he has told her that he has little income to pay child support because he is a full-time student. [71] Ms.

Lee deposed that in the late 1980s and 1990s, Act-Com brought in a net income of $60,000 to $80,000 per year, which the spouses split for tax purposes. It was her view that her husband could earn $75,000 per year from the business, had he chosen to persist, and that given his qualifications as an associate actuary and his knowledge of the computer industry, he could make even more. [72] Mr. Lee deposed that he has had little income since 1994, and that Act-Com’s income declined to the extent that at the beginning of 1998 it yielded approximately $1,000 per month.

He denied that he was qualified or certified as an assistant actuary. With respect to Act-Com he asserted that the software licences that he had were DOS based and he said that upon the advent of Windows, the DOS technology became obsolete. [73] Sigurdson, J. concluded that Mr. Lee was intentionally unemployed, as that phrase is referred to in the legislation. He noted that it was not necessary that there be a finding of bad faith before income can be imputed to a spouse, given the obligation of both parents to share the responsibility to maintain their children. He acknowledged.

Lee’s evidence that he had decided to obtain further education and to upgrade his skills so that he could be remuneratively employed in the future because of his concern about being able to contribute financially to the support of the children in the future.

[74] Before Sigurdson, J. counsel for Ms. Lee submitted that the Court should impute income of $50,000 to Mr. Lee on top of his rentalincome of $31,000 per annum, which would result in a total income of approximately $81,000 for Guideline purposes. Counsel for Mr.Lee submitted that only Mr. Lee’s rental income should be used to calculate Guideline maintenance. … [79] The basis on which income is imputed to the defendant is that he was intentionally unemployed and in my view thatconclusion was amply justified by the evidence.

The imputation of rental income is another matter and I see no error in the submissionof counsel for Ms. Lee that income should be imputed herein, and it is ordered that rental income of $25,000 per annum be imputed toMr. Lee representing his one-third share of the rental that could be obtained from a renting of the father’s apartment. [82] Mr. Lee’s financial situation is considerably better than was the case before Sigurdson, J. as of March 20, 2000 when he imputedan income of $25,000 per annum to Mr. Lee.

I have come to the conclusion that the appropriate order with respect to imputedincome (other than rental income) is that it be $25,000 per annum. When considered with rental income, this results in Mr. Leebeing obliged to pay child support for his two daughters based on an annual income of $88,000. Sultana v. Mohammed, 2018 ONSC 7515 (Engelking J.) [60] Section 19(1)(

a) of the Federal Child Support Guidelines[18] provides that the court may impute income if a spouse is“intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of achild of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.” [61] The leading case on imputing income in Ontario is Drygala v. Pauli, (ON CA), 2002 CarswellOnt 3228(C.A.).

Pursuant to Drygala, a spouse is intentionally underemployed if he or she chooses to earn less than he or she is capable of earninghaving regard to all of the circumstances (paragraph 28). There is no requirement that the under-employment or unemployment beundertaken in bad faith or with the intention of avoiding support payments (paragraphs 29 to 36). [62] The onus of establishing an evidentiary basis that the other party is under or unemployed is on the party seeking to impute theincome. In this case, the onus is on Ms. Sultana. However, Mr.

Mohammed has admitted to not being employed at all in 2017, by hisown choice, and being only minimally employed in 2018. Mr. Mohammed’s lack of employment or under-employment has not beenrequired by the needs of a child of the marriage. Nor has it been required by the reasonable educational or health needs of Mr.Mohammed. Although Mr. Mohammed has indicated it is his intention to go to school in 2019 at Fanshawe Collegeto upgrade himself with the hope of getting a job in IT, it is simply his choice to do so, without regard to the needs of his children.The OSAP loan document that Mr.

Mohammed provided, moreover, only confirms that the course is on-line. The court has noevidence to support that Mr. Mohammed could not be employed at the same time. Additionally, as I have indicated above, Mr.Mohammed has provided no medical evidence to support that he is incapable of being employed on a fulltime basis. Mullen v. Campeau, 2019 ONSC 4805 (Engelking J.) [59] Mr. Campeau testified that he originally did not finish high school, but had a Grade 8/9 education.

He has had severalpart-time or casual labour type jobs over the years, including as a mover for ANJ Campbell and a custodian for Dow Cleaning.However, he was able to secure fulltime employment through his brother at a company called Mirror Works from August of2015 to October of 2017, when he was laid off for lack of work. Mr. Campeau was in receipt of Employment Insurance for aperiod of time after he was laid off, and then made the decision that he needed to return to school to obtain his high schooldiploma and hopefully obtain a trade. Mr.

Campeau was accepted for academic upgrading at Algonquin College, which hecommenced as of November 5, 2018. [62] Mr. Campeau remained a fulltime student at the time of the trial, and his only source of income was $1,030 per monththat he was receiving from his mother to pay his living expenses. Mr. Campeau indicated that it is his intention to take an HVACcourse (working with heating and cooling systems) as soon as he is eligible to register for one and to enter that vocation. To hisknowledge, there is a course commencing in September of 2019, for which he hoped to be able to register. Additionally, so far asMr.

Campeau was aware, the course includes an apprenticeship portion for which one is paid prior to obtaining actualemployment in the field. Ms. Lamoureux testified that nearly all of males in her family work in the field, and that she thoughtthat would be helpful once Mr. Campeau is in a position to seek fulltime employment as a technician. [63] Ms. Mullen is of the view that Mr. Campeau should be required to pay child support from separation to the present. She isseeking a retroactive award, as well as on-going support. She seeks, moreover, that income be imputed to Mr.

Campeau, bothretroactively but also currently. She is of the view that minimally Mr. Campeau should be working part-time, as she has done as astudent. [72] From November 1, 2018, I find that Mr. Campeau’s unemployment is required by his “reasonable education needs” asper s. 19(1)(

a) of the Guidelines. Although Ms. Mullen submitted that Mr. Campeau could and should be employed part-timewhile going to school, Mr. Campeau testified that in order to succeed, his personal resources and attention need to be focused onhis schooling. Mr. Campeau is, in fact, making great progress and he had achieved an A- and an A+ in the courses completed tothe time of trial. I am not prepared to impute income to Mr. Campeau so long as he going to school in an effort to improve hissituation and his future prospects. [73] I do not find the basis for rescinding Mr. Campeau’s arrears of child support at they relate to Ryder, but I am prepared to

make an adjustment to his child support payable pursuant to s. 10 of the Guidelines. Commencing January 1, 2016, Mr. Campeau shallpay $200 per month to Ms. Mullen in support of Ryder up to and including the month of October, 2017. Commencing November 1,2017, and up to and including January of 2018, Mr. Campeau shall pay $0 per month to Ms. Mullen in support of Ryder. CommencingFebruary 1, 2018 up to and including the month of October 2018, Mr. Campeau shall pay $140 per month to Ms. Mullen in support ofRyder. Commencing November 1, 2018, Mr. Campeau shall pay $0 per month to Ms.

Mullen in support of Ryder, until such timeas he ceases to be a fulltime student or he commences paid employment as an apprentice as part of his program. [74] The Family Responsibility office shall make all necessary adjustments, taking into account my above findings and any supportpaid and/or enforced as a result of the temporary orders of then Master Champagne dated June 22, 2016 and Justice Phillips dated April20, 2017. Although Mr. Campeau will likely continue to have some arrears for child support for Ryder once the adjustmentshave been done, enforcement of the arrears will be stayed until such time as Mr.

Campeau ceases to be a fulltime student or hecommences paid employment as an apprentice as part of his program. P.K.K. v. J.S.K., 2012 BCSC 2075 (Holmes J.) [8] Mr. K.’s current income is $26,000 as a Ph.D. student in Pathology and Laboratory Medicine. This income consists of aUBC Fellowship of $18,000 and a top up from the B.C. Cancer Agency, his former employer, of $8,000. His income is lower thanhe enjoyed for the first few years of the Ph.D. program (until December 2011), when he was funded by two three-year scholarships for atotal of $42,000 per year. [9] Ms.

K. submits that the Court should impute a higher income to Mr. K. than he actually receives because, she submits, he isintentionally under-employed within the meaning of s. 19 of the Guidelines: 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstancesinclude the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required bythe needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of thespouse... [10] Goepel J. in McNaught v. Friedman, 2011 BCSC 524 at paras. 85-86, helpfully summarized the principles that apply incircumstances like these, drawing, in turn, from Drygala v. Pauli (2002), (ON CA), 61 O.R. (3d) 711 atpara. 23 (C.A.), and Hanson v. Hanson, (BC SC), [1999] B.C.J. No. 2532 at para. 14 (S.C.). Of particular relevanceto Ms.

K.’s position is the principle that non-remunerative or unproductive career aspirations does not excuse a parent from theobligation to take reasonable steps to support his or her children. [11] On the evidence, the question raised by s. 19 is whether the Ph.D. program is “required by [Mr. K.’s] reasonable educational ...needs” so as to negate a conclusion that he is intentionally under-employed. [12] Mr. K. formally began the Ph.D. program as of January 1, 2008. His expected date of completion was postponed (by a leave ofabsence to which I will return) to December 31, 2014.

The program is offered on a full-time basis only. Students are not at liberty totake on part-time employment. [13] Ms. K. submits that Mr. K.’s continuing academic studies cannot be viewed as required by his reasonable educations needsbecause Mr. K. offers no basis whatsoever for a belief that he will earn more when he has completed his graduate studies than he earnedbefore he started the studies. [14] Mr. K. earned $64,000 as a laboratory coordinator for the B.C. Cancer Agency before he embarked on his doctorate.

He hadcompleted his B.Sc. at Simon Fraser University in 1994, and then worked in a genetics laboratory between 1995 and 2001, earning atfirst $35,000 per year and later $40,000-$45,000 per year. He joined the B.C. Cancer Agency in 2001, first as a research assistant,earning approximately $50,000 per year, before then advancing to the position of laboratory coordinator. [15] When Mr.

K. was asked, in his examination for discovery, to estimate the income he will receive after he completes hisdoctorate, he gave a series of non-committal answers emphasizing the variability and uncertainty in the profession and the job market. Pressed to give a dollar figure, he offered only $45,000 per year on certain contingencies falling into place. Understandably, Ms. K.reasons that if $45,000 is the most that Mr.

K. expects to earn with a doctoral degree, then his lengthy course of studies cannot be viewedas “required by his reasonable educational needs”, when viewed in relation to his obligation to contribute to S.’s financial support. [16] Although I have some sympathy for Ms. K.’s position on this point, in my view, Mr. K.’s evidence about his expectationsrequires a more nuanced consideration than she gives it. [17] The evidence in the trial made clear that the parties do not communicate well, either directly or, sometimes, through counsel. Mr. K. is often guarded in his dealings with Ms. K. and her former counsel.

Also, from my observations during the trial, I agree withMr. K.’s counsel’s submission that Mr. K. places great emphasis on precision and accuracy; to my observation he will overstateuncertainties in order to avoid ever agreeing to any inherently uncertain proposition. This tendency makes him appear evasive orantagonistic, but in my view it results from Mr. K.’s somewhat inflexible and guarded attitude, and not from any effort to mislead orobscure. [18] I note also that Mr. K. embarked on his graduate studies during the marriage, and has continued according to plan, except forthe leave of absence. Mr.

K. had completed his Master’s studies (which also involved a significantly reduced income of $21,000 peryear) and he was well into the Ph.D. program before the parties separated in December 2009. The parties evidently value highereducation. Ms. K. has a B.Sc. in biology and another degree from UBC; she pursued a Masters of Arts and Leadership during themarriage. On the evidence, I conclude that the parties themselves must have viewed Mr. K.’s Ph.D. program as reflecting Mr. K.’sreasonable educational needs, even though that program involved a reduced income, to be yet further reduced after his scholarship

funding was to run out after three years. [19] I give no weight to the leave of absence in his discussion because there is no real dispute that the leave was necessary because of the health and emotional effects of the marriage breakdown. Also, Ms. K. took an unpaid leave of absence to care for her second child after her maternity leave with that child, and therefore similarly postponed her income-earning potential. [20] In my view, for Mr. K. to complete the Ph.D. program he began during the marriage is, in the circumstances, required for his reasonable educational needs. There is every indication that Mr.

K. is pursuing the program diligently and successfully. Despite Mr. K.’s cautious and unhelpful responses about his income expectations after he earns his doctoral degree, I am satisfied that Mr. K. will earn a significantly higher income than he does now or than he did before he embarked on his graduate studies. While he would not agree that he will likely earn these amounts, he agreed, in his examination for discovery, that some graduates enjoy six-figure incomes. [21] For these reasons, I do not find Mr.

K. to be intentionally under-employed in pursuing his Ph.D. program on the timeline outlined in the evidence. His income for child support purposes is therefore his actual income of approximately $26,000. Bishop v Wang , 2018 BCSC 781 (Shergill J.) [124] As at the trial date, Ms. Wang had been out of work for almost three months, stating that she was using the services of a career counsellor to “re-brand” herself, and retrain “in the hopes of getting a new career”. She testified that she felt she was at a cross roads, having done the same job for nine years.

Although she had gone to several interviews with recruiters, she did not appear to be engaged in active job search efforts. Rather, Ms. Wang was actively pursuing her new found aspirations to become a lawyer. She had taken the Law School Admission Test (LSAT) preparation course and had applied to the UBC Allard School of Law, with plans to attend law school in the fall of 2018. This evidence meets the threshold to constitute intentional unemployment. [125] Turning to the second question in Drygala , of whether the intentional unemployment is “required by virtue of reasonable educational needs”, I find that Ms.

Wang has not met the burden of proving that her educational plans are reasonable in the circumstances of this case. [126] As noted by Huddart J.A. in Barker v. Barker, 2005 BCCA 177 at para. 18 , “a parent who chooses to work less than a regular work week must justify that choice by the needs of the children or suffer the loss personally”. While obtaining a law school degree may improve Ms. Wang’s earning capacity in the long run, pursuit of this educational goal is unreasonable at this time. Ms. Wang is the primary source of financial support to C.B. Her substantial earnings cannot be replaced by Mr.

Bishop even if he were to return to the work force immediately. Ms. Wang’s plan to forego employment in order to obtain a law degree, ignores the substantial financial consequences to C.B. of her decision. C.B.’s needs are immediate. He cannot wait until 2022 for Ms. Wang to complete law school and her articles, before being able to provide for his financial needs. [127] Having answered the second question in Drygala in the negative, I turn now to imputation of income for Ms. Wang for 2018. [128] I have determined Ms. Wang’s income from her severance pay, based on Ms.

Wang’s testimony regarding the amount and duration covered by the two lump sum payments (i.e. she is to receive the equivalent of $6,451.50 per month for a total of ten months, covering her to the end of June 2018). Extrapolating this over 12 months, translates to a net income of $77,418, for the 2018 year. Having regard to Ms. Wang’s 2016 income tax return which revealed a net income of $81,353 based on a gross income of $101,080, these figures suggest that a net income of $77,418 would likely be equivalent to gross earnings in the range of $90,000 to $100,000. However, without more evidence as to Ms.

Wang’s income tax and other deductions, I am not able to fairly impute income to Ms. Wang using this method. [129] A more appropriate method would be to use a three year average to calculate Ms. Wang’s imputed income for 2018. This would yield an earnings figure of $84,892, derived from past annual earnings as follows: income for 2015 of $60,702, for 2016 of $101,080, and for 2017 of $92,895. [130] To determine what income Ms. Wang is capable of earning, I have factored into the equation, the following considerations: Ms.

Wang’s age; education and qualifications; years of experience in the work force; income earnings history; and the possibility that she may have difficulty finding work in the banking industry due to her termination or knowledge of her affair with Mr. Methorst. [131] Having regard to all of these factors, I impute income to Ms. Wang in the amount of $75,000. This figure is significantly lower than the income actually earned by Ms. Wang over the past several years, and closely matches her Vancity salary before factoring in overtime hours .

Galpin v Galpin , 2018 BCSC 1572 (Riley J.) Whether the Trial Judge Erred in his Consideration of the Legal Principles Governing Imputation of Income [34] Mr. Galpin argued in his factum that the trial judge erred in law in ordering spousal support – to allow Ms. Galpin to pursue her educational goals – under the guise of a child support order. I find no merit in this argument, which was not pressed in oral submissions. The trial judge’s entire analysis took place under the framework for imputation of income as set out in s. 19(1)(

a) of the Guidelines and the case law dealing with imputation of income for child support purposes. [35] Mr. Galpin also argues that the trial judge erred in his

interpretation of the phrase “reasonable educational or health needs” within the meaning of s. 19(1)(

a) of the Guidelines . The premise of the Guidelines is that spouses have an obligation to provide support for their children. Intentional underemployment to pursue education can only be justified where it is “necessary” in light of “reasonable educational needs”. As Steel J.A. stated in Donovan v. Donovan , 2000 MBCA 80 at para. 20 , “the concept of reasonableness must be assessed in light of the joint ongoing legal obligation of the parents to maintain their children”.

[36] In Drygala v. Pauli (2002), (ON CA), 61 O.R. (3d) 711 (C.A.) at para. 39-40, Gillese J.A. explained thatwhere a spouse seeks to avoid imputation of income based on educational pursuits, there are two aspects to the inquiry under s. 19(1)(a)of the Guidelines. First, the court must determine whether the spouse’s educational needs are reasonable. This involves a consideration ofthe spouse’s course of study, keeping in mind that a spouse is not excused from support obligations based on “unrealistic or unproductivecareer aspirations”.

Second, the court must determine what is “required” by virtue of the spouse’s reasonable educational needs. Thisinvolves a consideration of the demands of the educational program, child care responsibilities, the arrangements in place to meet thespouse’s financial needs, and the spouse’s ability to earn at least some income through part time work. [37] The trial judge’s analysis in the case at bar is entirely consistent with the approach suggested by Gillese J.A. in Drygala. Thetrial judge carefully scrutinized Ms. Galpin’s educational plan, finding it to be realistic and reasonable.

The trial judge alsoconsidered the extent to which Ms. Galpin’s underemployment was “required” for her to pursue her educational needs. Thejudge concluded that Ms. Galpin was able to work part time during periods when she was studying, and full time during periodswhen she was not studying. The judge proceeded to impute income to Ms. Galpin on that basis. [38] Mr. Galpin argues on appeal that the trial judge erroneously focused on what was reasonable solely from Ms. Galpin’sperspective, rather than considering whether she had objectively reasonable educational needs.

I agree that the phrase “reasonableeducational or heath care needs” contemplates an objective standard, a standard which according to the case law must take intoaccount the spouse’s child support obligations. However, I do not agree that the trial judge applied a subjective test focusedsolely on Ms. Galpin’s educational aspirations or desires. Read as a whole, the reasons show that the trial judge applied astandard of objective reasonableness. The trial judge carefully scrutinized Ms.

Galpin’s rationale for seeking further education,the viability of her educational plan, her prospects of success, her anticipated income, the potential benefits to Ms. Galpin and thechildren, and the potential indirect benefit to Mr. Galpin. [39] Finally, Mr. Galpin argues that the trial judge’s analysis failed to account for the “best interests of the children”. As far as childsupport is concerned, the best interests of the children are generally served when both spouses contribute to the support of thechildren to the best of their ability.

To this end, the Guidelines establish an analytical framework for determining child supportbased on each spouse’s income, and by providing for imputation of income where a spouse is intentionally underemployed. Inapplying this analytical framework, the trial judge’s analysis took into account the best interests of the children. I note that in thecourse of his reasons, the trial judge expressly found that Ms. Galpin was genuinely acting in the best interests of the children.The trial judge also found that the anticipated increase in income associated with Ms. Galpin’s educational plan would directlybenefit Ms.

Galpin and the children, and indirectly benefit Mr. Galpin. The trial judge’s analysis appropriately accounted for thebest interests of the children. Whether the Trial Judge Misapprehended the Evidence [40] Mr. Galpin argues that the trial judge misapprehended the evidence bearing on the issue of imputation of income. In oralsubmissions, Mr. Galpin’s counsel focused this argument on the evidence concerning the admissions criteria for University of BritishColumbia (“UBC”)’s Midwifery Program. This was one of the two educational programs which Ms. Galpin was working towardattending. [41] Mr.

Galpin cites a document tendered as an exhibit at trial, summarizing the admissions standards for UBC’s MidwiferyProgram. The document states that the “application process is competitive”, and that “it is strongly recommended that all applicantscomplete a minimum of 24 transferable post secondary credits” so that “their GPA can be calculated at a post-secondary level”.Ms.

Galpin intends to apply for admission at the end of 2018, at which point she will have completed all of the necessary high schoolcourses required for university admission, but she will not have completed a minimum of 24 transferable post secondary credits.Mr. Galpin argues that the trial judge misapprehended this evidence in concluding that Ms. Galpin’s education plan was realistic andreasonable. [42] The trial judge’s finding is not inconsistent with or contrary to the evidence.

The admissions criteria document described abovedoes not say that applicants must have a minimum of 24 post secondary credits; the document merely indicates that because theadmissions process for UBC’s Midwifery Program is very competitive, it is recommended that applicants have a minimum of 24 postsecondary credits. The trial judge was alive to the fact that the admissions process for UBC’s Midwifery Program is very competitive.However, the trial judge was impressed with the fact that Ms.

Galpin had obtained “straight A’s” in her high school courses, shehad a number of highly supportive references, and she was a “mature student” whose life experience complemented heracademic performance. Among other things, there was evidence that Ms. Galpin worked part time at a midwifery clinic.

This isthe kind of practical work experience that would stand her in good stead in seeking entrance to UBC’s Midwifery Program,notwithstanding her lack of post-secondary course credits. [43] It is not for the appeal court to revisit or re-weigh the evidence, absent palpable and overriding error on the part of the trialjudge. There is no indication that the trial judge overlooked or misconceived the evidence now emphasized by Mr. Galpin. Nor are thetrial judge’s findings demonstrably inconsistent with that evidence. I therefore cannot accept Mr. Galpin’s submission that the trial judgemisapprehended the evidence.

Whether the Trial Judge’s Conclusion was Manifestly Unreasonable [44] Mr. Galpin says the trial judge’s conclusion that Ms. Galpin’s underemployment is required by virtue of reasonable educationalneeds is manifestly unreasonable. From Mr. Galpin’s perspective, Ms. Galpin made a decision to forgo some $42,000 per year inincome as an administrative assistant, in pursuit of a seven-year course of study, in an incredibly competitive field, withquestionable chances of success. In the interim, Ms. Galpin will be unable to meet her pre-existing obligation to provide supportfor her children. Mr.

Galpin contends that it was manifestly unreasonable for the trial judge to find that this course of action wasrequired in pursuit of reasonable educational needs under s. 19(1)(

a) of the Guidelines. [45] However, the trial judge did not view the matter this way. After scrutinizing Ms. Galpin’s educational plan, her chances

of success and potential earnings, her efforts to reduce housing expenses through co-op housing, and her ability to work part time concurrently with her studies, the trial judge was satisfied that Ms. Galpin’s decision was reasonable and realistic. Mr. Galpin’s argument does not fairly account for the trial judge’s view of the evidence. For example, the suggestion that Ms. Galpin chose to forgo $42,000 per year in employment income overlooks her ability to earn income by working part time while pursuing her studies. It also overlooks the fact that Ms.

Galpin has been able to reduce her costs by securing subsidized, co-op housing. Similarly, the characterization of Ms. Galpin’s chances of success as poor overlooks her impressive grade 12 marks, her academic references, her work experience in the field of midwifery, and her life experience as a mature student. [46] As stated in Kane v. Proffitt , 2018 BCCA 106 at para. 42 , “[t]he function of appellate review is not to re-try a case or to continue the trial at a different stage”.

It is not for an appeal court to substitute its view of the evidence for that of the trial judge. [47] The question is not whether this Court would conclude that Ms. Galpin’s underemployment is justified by virtue of reasonable educational needs. Absent an error in law, an error in principle, or a misapprehension of the evidence, the Court can only intervene if the trial judge’s conclusion is “clearly wrong”: Simpkins v. Kurz , 2018 BCSC 671 at para. 10 , 30; R.E.Q. v. G.J.K. , 2012 BCCA 146 at para. 33 .

When considered in light of the trial judge’s findings of fact, I cannot say the trial judge’s conclusion that Ms. Galpin’s course of action was required in pursuit of reasonable educational needs was clearly wrong. Decker v. Fedorsen , 2011 ONCJ 850 (Dec 13, 2011) (Curtis J.) 38. Ms. Decker is now a full-time student, set to complete her course in July 2012. She plans to work in the medical administration field when she completes her course. However, she could not tell the court what she expected to earn in this job. She could not even provide an estimate, or a minimum, or a range of salary.

She is not planning for her future as she should be at this age and stage of her life. 39 . If Ms. Decker were not in school, the court would have imputed at least minimum wage income of $21,300. As she is currently in school, the court will impute a part-time wage of $12,000. KS v TLS , 2015 ABQB 568 (Campbell J.) [80] However, despite his protests, with a shared parenting regime that have had the children residing with each parent on a week on, week off basis since March 2012 and the children in full-time attendance at school, the children do not require full-time care by Mr. KS. Ms.

TLS managed to parent their children while working full time. Mr. KS has had much free time, for many years, even while attending university . Mr. KS cannot escape his financial responsibilities to his children because he chooses not to work or to work less than full-time. Costs associated with going to work do not relieve a parent from being underemployed or not employed . [81 ] I find that Mr. KS was capable of part-time employment while he was attending university and is capable of full-time employment since his graduation. Given economic conditions in Calgary, I see no valid reason for Mr.

KS’s failure to seek any kind of employment or pursue full-time studies after the parties’ separation. Until he secured his teaching positions following his graduation in June 2014, Mr. KS had done virtually nothing to obtain any kind of employment other than to make one inquiry with Air Canada in 2010. As an intelligent, articulate person with marketable skills (his French language fluency and now teaching certificate), he was, and is, fully capable of employment. As a parent, he cannot choose unemployment. His children are entitled to his full financial support and Ms.

TLS is entitled to some financial assistance from him. [82] What is a reasonable amount of income that Mr. KS was and is capable of earning? [83] I first deal with the years from separation to the date of Mr. KS’s graduation in April 2014. Mr. KS took one university course in the fall of 2010 and withdrew from his one university course in the winter of 2011. In the fall of 2011 Mr. KS took only three university courses. Commencing with the Winter session of 2012, Mr. KS took four to five courses each term and was considered to be in full time enrollment at university. [84] Ms.

TLS is not seeking to impute income to Mr. KS for 2010 and 2011, although he was not in full-attendance at university during those years. While I would have imputed some income to Mr. KS for at least 2011, I accept that Mr. KS was newly separated in 2010 and was assisting Ms. TLS with her after school child care responsibilities, which made it difficult for him to seek employment. [85] The March 2012 Order imputed an annual income to Mr. KS of $18,000 for 2012, noting that Mr. KS advised that he was in full time attendance at the University of Calgary and that Mr. KS has an obligation to be self-sufficient.

Justice Phillips continued to impute that annual income to Mr. KS for 2013. This imputed amount is less than what would be earned by a full- time minimum wage earner. Mr. KS with his educational background and marketable skills, was capable of securing part-time employment positions, such as tutoring, that could have paid him more than minimum wage. Further, given that Mr. KS made effectively no effort to earn any income in 2010 or 2011, I think it not unreasonable to impute to him an annual income of $18,000 for the years 2012 and 2013. [86] For 2014, the evidence indicates that Mr.

KS will earn approximately $26,500. Mr. KS’s actual line 150 income will now be available. Counsel are asked to use his actual line150 income from his 2014 Notice of Assessment to calculate the amount of child support payable by him for 2014. Amey v Omot , 2015 SKPC 81 (Gordon J.) [3] A hearing was held May 19. Both parties had filed his or her financial information. In addition, Mr. Omot had filed an affidavit. The claimant asks the Court to impute income to the respondent. The claimant argues that Mr. Omot has a history of part-time jobs as well as he was working full-time at the pork plant.

He suffered a non-work related accident and was on disability. He later was fired from the pork plant. At that point, Mr. Omot decided to further his education at SIAST (Sask Polytechnic) and is currently

taking upgrading courses in literacy and mathematics. It is anticipated the courses will last a couple of years. The claimant argues,based on the cases of Hamblin v Masniuk, 2014 SKQB 284 [Hamblin] and Pontius v Murray, 2011 SKCA 121 [Pontius], that therespondent is deliberately under-employed. The claimant suggests that a person cannot be relieved of their child support obligations by,in this case, returning to school. In paragraph 9 in Hamblin, Mr.

Justice Megaw stated as follows: In Tice, Archambault J. dealt with an applicant who was employed as an electrician but voluntarily left his position to start his ownbusiness. As is the case here, the applicant in Tice did not apply for any other jobs prior to embarking on his new venture.

In refusing togrant the request for variation the court stated: 5 It is now well established law in this province that where a parent voluntarily and without sufficient justification ceases hisemployment to continue education or for some other reason or to engage himself/herself in less lucrative employment, he/she will not berelieved of the obligation to continue supporting dependent children…(cites omitted) [9] Apparently there were some discussions between counsel to have Mr. Omot seeing the child on a regular basis. I do notfind that Mr.

Omot left his full-time employment to avoid his child support obligations. I find that his decision to return toschool and improve is a valid and legitimate one which will benefit not only himself but his child and, quite frankly, society. Hewill have an opportunity to obtain employment at more than minimum wage. The provincial training allowance is only $744.00per month. Obviously Mr. Omot will have to supplement that by working at least part-time. I also noted that the two months ofthe summer he could work as well. I am prepared to accept the calculations put forward by Mr. Struthers on behalf of Mr.Omot.

Therefore the provincial training allowance of $744.00 per month for 10 months is $7,440.00. I am prepared to imputeincome of $6,788.00 as suggested by the respondent ($14,232.00 minus $7,440.00). I am satisfied that represents a reasonableamount that Mr. Omot can realistically earn without neglecting his studies. This translates to $84.00 per month child supportand his proportionate share of the net child care expenses of $1,604.00 for the year according to the claimant’s evidence whichwas not disputed. Given the income that I have found, the calculation filed by Mr. Struthers shows that Mr.

Omot’s proportionate shareis 33.52 percent and Ms. Amey’s is 66.48 percent. This translates to $45.00 per month payable by the respondent. Mr. Omot shall paysection 3 table amount of $84.00 per month for the child Noah as of June 1, 2015 and likewise on the first of each and every monththereafter as well as

section 7 child care expenses in the amount of $45.00 per month. This totals $119.00 per month. Drygala v. Pauli, (ON CA) Reasonable Educational Needs [38] There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child supportobligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs. [39] There are two aspects to this stage of inquiry.

The trial judge must first determine whether the educational needs are reasonable.This involves a consideration of the course of study. A spouse is not to be excused from his or her child support obligations infurtherance of unrealistic or unproductive career aspirations. [40] But, s. 19(1)(

a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judge determinewhat is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? Howmuch time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands suchthat the spouse is excused from pursuing part-time work?

Could the program be completed over a longer period with the spousetaking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-timeemployment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way?

These are the types of considerations that go intodetermining what level of under- employment is required by the reasonable educational needs of a spouse. [41] The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisiteinformation. The spouse is in the best position to know the particular requirements and demands of his or her educationalprogram. He [page721] or she will have information about the hours of study necessary to fulfill such requirements, including theappropriate preparation time.

He or she is in the best position to show whether part-time employment can be reasonablyobtained in light of these educational requirements. [42] By implication, the trial judge found that Mr. Pauli's educational goals are reasonable. He appears also, in effect, to have determinedthat Mr. Pauli's intentional under- employment was required for that period in which he was on academic probation.

This determinationhas implications for the period in which child support can be awarded, as will be seen later in these reasons in the context of retroactivityof child support. [46] When imputing income, the court must consider the amount that can be earned if a person is working to capacity while pursuing areasonable educational objective. How is a court to decide that when, typically, there is little information provided on what the parentcould earn by way of part-time or summer employment?

If the parent does not provide the court with adequate information on the typesof jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent'sprevious earning history and impute an appropriate percentage thereof. [page722] [47] It was open to the trial judge to find that some or all of the amounts received by Mr. Pauli from his mother and from his stepfather's

company should have been considered when determining imputed income. The fact that he has chosen to rely upon his mother for his own support does not justify a failure to provide child support. Nor does it lessen Mr. Pauli's obligation to provide such support as is appropriate in the circumstances. [48] $30,000 is significantly less than Mr. Pauli's annual expenses, which exceed $48,000, and all of which are being paid without him incurring any debt. Mr. Pauli's financial statement shows that he has disposable and discretionary income, including $240 per month for cigarettes.

Such information may have been relevant, as well, when determining an appropriate income figure. [49] The appellant has clearly failed to recognize his child support obligation. He has done well financially and despite that, he has paid almost nothing for child support. These, too, are relevant factors when determining the quantum of income to impute. [50 ] However, the trial judge imputed income on the basis of part-time employment, not Mr. Pauli's other sources of income.

Having decided that the appropriate basis upon which to impute income was part-time employment, there was an obligation upon the trial judge to give some indication of how he arrived at the figure of $30,000. While significant deference must be given to trial judges in relation to support orders, a consideration of Mr. Pauli's prior earnings history demonstrates that the figure of $30,000 is unreasonable for part-time employment given that he seldom earned that much when working full-time. [51] The trial judge had evidence of Mr. Pauli's age, education, experience, skills and health.

He had, as well, various newspaper advertisements that Ms. Drygala presented at trial, indicating that local businesses were seeking tool and die makers. [52] It was entirely appropriate, on the record, to impute income to the appellant. The evidence shows that Mr. Pauli was taking three courses per term. He spends three hours of classroom time each week for each of the three courses for a total of nine hours of classroom time. After making an appropriate allowance for study time outside of class, it is reasonable to assume that Mr.

Pauli could work 50 per cent of a normal work week . 1996 is the last year in which Mr. Pauli earned income from a job. He earned $33,000 in 1996. Child support shall be ordered based on an imputed income of $16,500. Mwenda v. Madituka , 2018 ONCJ 503 (Murray J.) Father’s decision to return to school [38 ] In September 2016 Father began a full-time 2-year program in social work at the College Boreal. His evidence is that he made the change in order to “upgrade myself” and because “I like helping people”.

His evidence is that while enrolled in the program, his only income has been from his part-time work at the Board and social assistance payments, supplemented by the student loan and non-taxable grants he receives. [39] When this case came to court in October 2017, Father argued that income should not be imputed to him because his under- employment was reasonable.

Father said that he would complete his program in April 2018 and would then be able to get a job earning $27-28 and hour, yielding much more income than the $12,000 he estimated he was then earning. [40] In June 2018 Father advised the court that his graduation was going to be delayed by a year because he had dropped two required courses. At trial he testified that he had dropped these courses in his first term in September 2016, in order to boost his taxable income by working more time at the Board. He thought that this was necessary to strengthen his application to sponsor his wife.

Father testified that he only found out in September 2017 that these courses were required, and this led to the delay in his graduation. Father offered no explanation as to why he did not disclose this fact in court appearances prior to June 2018. [41] At trial, Father testified that he was confident that he would obtain a position as a social worker paying in the range of $30-33 per hour when he graduates in April 2019. Intentional underemployment [51]

Section 19 provides as follows: 19.

(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (

a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; [52] Father is clearly intentionally under-employed. He is only working part time. According to his 2017 return, he is earning half of what he would earn if employed full time. He has turned down the offer of a full-time job. [53] What is the reason for his under-employment?

Is this under-employment “required” by Father’s “reasonable educational needs”? The onus is on Father to establish this. His evidence is that he “wants to help people” as a social worker, and that he wants to “upgrade “himself. [54] In assessing the reasonableness of Father’s choice, I note that this choice deprives the children of almost all the support each month that they would be entitled to receive under the Guidelines if he had taken up the full time position offered to him at the Board. [6] Mother’s income is modest.

Proper support received from Father would make a difference to these children’ [55] Caselaw is clear that a parent’s mere desire to have more interesting or fulfilling work is not an acceptable reason for

underemployment. [7] [56] While pursuit of better paid employment might justify a temporary period of under-employment, that choice must be assessed in the light of a number of factors—the quantum of increase in income expected, the certainty that there will be an increase, the duration of the period of education, the diligence of the parent in pursuing that education, the provision that the parent is prepared to put in place to protect the children from the results of the decrease in support caused by underemployment, and the ability of the custodial parent to protect the children from the results of that decrease in support. [57 ] In this case, it is not clear that Father’s choice to be under-employed, when viewed from the children’s perspective, was reasonable . • According to Father’s estimates, upon completion of the program he will enjoy an increase in income, from about $6-10 per hour.

He says that other graduates of his program have obtained jobs paying at rates of $27-33 per hour, and he is confident that he can do so. • However, Father has been careless already in doing what needs to be done to finish the program, delaying its completion for at least one year. • As well, Father makes no proposal (such as payment of an amount in excess of the table amount, perhaps with credit for any overpayment after he obtains his new job) to provide the children with more adequate support pending the completion of this program . [58] Section19 is discretionary.

Even if the court finds that Father’s under-employment is not required by his reasonable educational needs, it is not required that income be imputed to him. In this case, I take into account the following; • Father has already invested two years in this program. • Upon completion his income should be approximately $10,000 annually in excess of what he could be earning now in a full time job with the Board.

Assuming that Father discloses his higher income, his decision to work part-time to obtain a social work qualification could ultimately benefit the children. • As set out below, I find that Father’s current Guideline income is now significantly higher than he submits. This finding substantially mitigates the effect on the children’ of Father’s decision to be under-employed. [59] I do not impute income to Father at this time on the basis of intentional underemployment.

If, however, he fails to complete his program by April 2019 and continues to be under-employed, then that would be a material change in circumstances that could justify a variation of this order.