Child Support — Imputing Income
By: Philip Epstein
Tillmanns v. Tillmanns, 2014 CarswellOnt 16487 (Ont. S.C.J.):
This is a tour de force about imputing income penned by Justice Pazaratz of the Unified Family Court in the Superior Court of Justice in Ontario. It is a complete road map for when one considers the issue of imputed income.
This is a case that should never have gone to trial, and never mind a three-day trial, over a relatively small difference on the issue of child support. Even assuming modest counsel fees, it will take the applicant at least five years of child support to catch up to her costs, if not more. The parties' differences did not warrant a trial, as Justice Pazaratz notes:
But where parents work hard their entire lives and then suddenly they are thrust into unemployment - all we can expect
is that they will make reasonable choices in extremely difficult circumstances.
There will rarely be a single "best" answer. And it rarely makes sense to pay trial lawyers thousands of dollars to try to
In this case, the father lost his job as a result of an involuntary layoff and the closing of the manufacturing plant in which he had worked for years. The father, recognizing that the manufacturing industry in Ontario was going nowhere, particularly given his limited education and prospects, decided to go back to school and become a plumbing apprentice. To his credit, he succeeded in a one-year school program, graduated at the top of his class and became an apprentice plumber. He was, for the next few years, going to earn half of what he earned at the plastics company, but he had a future as a plumber and in the long run, his child support would likely go up. The mother was having none of this. She thought that the father should have continued to look for work elsewhere and was derisive of his attempts to find work and criticized his choice of a plumbing apprenticeship. The mother had a good paying job and had remarried someone who also has a good paying job, and was not in desperate financial circumstances. It is beyond me why she pursued this case so vigorously, and why no one called a halt to proceedings that were obviously counterproductive. However, for the benefit of us all, and as is his wont, Justice Pazaratz takes the time and trouble to canvass all of the leading cases in the law of imputing income. Every major case is covered and the principle about imputing income, intentional unemployment, reckless behaviour, and the factors that have to be considered are all canvassed in very concise fashion. This is a must-read and a case to keep on hand whenever one confronts the issue of imputing income. As Justice Pazaratz sums up,
All of these principles have a common theme: reasonableness. Parents are required to act responsibly when making
financial decisions that may affect the level of child support available. They must not arrange their financial affairs so as
to prefer their own interests over those of the children. Stewart (supra).
The Court finds that the father acted reasonably throughout. It was reasonable for him to seek a career. He did the best
he could in difficult circumstances. Justice Pazaratz notes:
The Respondent's livelihood is uncertain. The Applicant's child support payments are also uncertain. They both have
good reason to worry about their finances. They both now face the same challenges thousands of Canadian families
are facing as manufacturing plants close and many "good jobs" disappear forever.
But as affected families - and entire communities - struggle with harsh new financial realities, it's important not to
compound this collective tragedy through an insensitive and unrealistic approach to imputing income.
Laid off plant workers cannot be presumed to be "deadbeat dads". There are no easy answers for any of them
individually; and there appear to be few encouraging answers for them collectively.
It is difficult to see how there could have been any other outcome. Ironically, if the mother thought that the father's investment in a plumbing career was misguided, her attempt to impute income as a factory worker where there were no jobs, was equally, if not more, misguided.