British Columbia Family Law Blog

In the recent Canadian child support and spousal support divorce case of Homsi v. Zaya 2009 ONCA 322, the appellate court reviewed the onus when parties allege the actual income of a party does not reflect what they could really earn if they made a reasonable effort to earn income.  The court held the onus is on the person requesting an imputation of a higher income.

Whether the trial judge erred in awarding child support on the basis of an imputed income

[27]      Homsi submits that the trial judge imputed income to him without evidentiary foundation.

[28]      I agree.  The approach mandated by this court in Drygala v. Pauli 2002 CanLII 41868 (ON C.A.), (2002), 61 O.R. (3d) 711 requires a consideration of whether the spouse is intentionally unemployed or under-employed, and, if so, what the appropriate income is under the circumstances. The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding.  Here, the trial judge cited only historic and unproven evidence in support of imputing an income of $36,000 to Homsi.  In my view, the trial judge’s observation that Homsi was intelligent and had the ability to sell cars (in Quebec when he does not speak French) was not evidence capable of supporting the inference that Homsi was intentionally under-employed and that an annual income of $36,000 was reasonably imputed to him.

The Court also dismissed the spousal support claim of the wife given the brief marriage and the priority of child support and looked at the respective incomes of the parties.

Whether the trial judge erred in awarding spousal support to Zaya

[33]       Zaya submits that appellate courts should only interfere with a lower court decision awarding support if the trial judge made a material error. The trial judge held that Zaya suffered an economic disadvantage from the marriage because she was not working for 18 months after Anthony was born and would have been employed if the marriage had not broken down.  

[34]      The trial judge provided no reasons in relation to this part of his judgment.  Accordingly, it is open to this court of make its own assessment of whether Zaya is entitled to support, for how long, and in what amount.

[35]         Moge v. Moge, 1992 CanLII 25 (S.C.C.), [1992] 3 S.C.R. 813 (at para. 74) establishes that since there is no automatic entitlement to spousal support, the evidence must be examined.  There was no evidence to support a finding that Zaya had suffered economic disadvantage as a result of the marriage.  The marriage was not long, and there was nothing to suggest that Zaya suffered disadvantage as a result of the marriage. In fact, her employment record during the marriage was stronger than Homsi’s. Moreover, the trial judge ignored Homsi’s limited ability to pay support. The law is clear that priority should be given to support for Anthony.

[36]         I would give effect to this ground of appeal and set aside the spousal support award in its entirety. 

This case may well be a bell weather of a return to a more stringent look at the entitlement to spousal support and a better focus on the objective of propmoting economic self sufficiency