Slackers, Shirkers and Career-Changers: Imputing Income for Under/Unemployment

A reader of Canadian appellate jurisprudence will think [imputing income] is a closed issue. After all, most Canadian appeal courts have concluded that there is no need to prove "bad faith" or "a specific intent to evade child support obligations" in order to impute income under s 19(1)(a): Nova Scotia, Manitoba, Ontario, and British Columbia. So far, only Alberta has adopted the "bad faith" test. Under a slightly-different regime, the Quebec Court of Appeal appears to have rejected a bad faith test, opting for a more flexible approach too. In a recent New Brunswick Court of Appeal decision, there is a hint that they too would join with the "reasonableness" crowd. Lower courts are divided, but the trend is clear, you could say. The Supreme court of Canada has not yet spoken on this subject.

So the consensus legal test is one of "reasonableness." The legal problem is resolved. All the rest is just about facts, right? Well, facts and case-by-case discretion.

I will argue that we've only just begun, to quote the Carpenters. The "reasonableness" test solves the first and easiest issue under s 19(1)(a). A review of the case law reveals that the real differences are not about "facts," but about "policy." More appellate guidance is required. "Rules" may or may not be possible, but the policy issues need to be clearly stated. This article attempts to begin that next step.