The Child Support Guidelines under the Family Law Act Child provide guidance in the governance of child support obligations in Ontario. Parents are often under-employed or unemployed despite child support obligations because they are enrolled in school. What are the support obligations for a parent who is enrolled in school, and is there a special way to calculate support in these circumstances?
Section 19(1)(a) of the Child Support Guidelines allows courts to impute income to a parent as it considers appropriate when a parent is intentionally under-employed or unemployed. An exception to this is if under-employment or unemployment is required by the reasonable educational needs of the parent. How does the court determine what a reasonable educational plan is? Case law sets the precedent for this question, with the court’s decision in Drygala v Pauli, 164 OAC 241 being at the forefront.
The court in Drygala v Pauli determined that the burden lies with the claimant in demonstrating that a parent is intentionally under-employed or unemployed. Further, if established, the burden shifts to that parent to demonstrate that their educational needs are reasonable, and that under-employment and unemployment are required by virtue of their educational needs.
In Drygala v Pauli, the father worked as a certified tool and die make. He quit his job and later returned to university, hoping to become an elementary school teacher. He maintained that he should not have to support his daughter until he graduated from university. The court held that it was entirely appropriate to impute income to the father. Given his skills, his child support obligation and the demands of his courses, it was reasonable to expect that he could work 50% of a normal work week. The court imputed to him an income of $16,500, which was 50% of his income during the last year that he worked. It was also determined that the father should have been able to work full-time during the summers.
Generally, courts are willing to find a parent’s decision to enroll in school to be reasonable where the parent’s earning potential is increased. An increased earning potential is to the financial benefit of the child, and thus may be deemed in the best interest of the child. However, this does not prevent a parent from having to pay support. Courts may impute a parent’s income as the number of student loans they receive and require the parent to make support payments from their student loans. Courts will also tend to expect the parent to work during time off from school, such as during summer breaks. Finally, courts may impute a parent’s income as the income they would be earning but for their decision to pursue schooling and irrespective of whether that imputed income is substantially higher than their current student income.
Pursuant to Drygala v Pauli, a court must consider the course of study when determining whether educational needs are reasonable. A parent is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. Additionally, the court will consider the following factors: How many courses must be taken and when; how much time must be devoted in and out of the classroom to ensure continuation in the program; whether the academic demands are such that the parent is excused from pursuing part-time work; whether the program could be completed over a longer period with the parent taking fewer courses so that the parent could obtain part-time employment; whether summer employment is reasonably expected; and whether the parent can take co-operative courses as part of the program and earn some income in that way. These are the considerations that go into determining what level of under-employment is required by the reasonable educational needs of a parent, and in turn, the support obligations of that parent.
Pursuant to Drygala v Pauli, a number of factors are relevant when calculating support in these circumstances, including age; education; experience; skills and health of the parent; the availability of job opportunities; and the number of hours that could be worked in light of the parent’s overall obligations, including educational demands and the hourly rate that the parent could reasonably be expected to obtain.
The court in Tillmanns v Tillmanns, 2014 ONSC 6773 determined that there is a duty on the parent to actively seek reasonable employment that will maximize their income potential. However, parents can take jobs which generate less money if the court finds the decision to be reasonable and justified in a compelling way. Courts cannot arbitrarily allocate an imputed income, and an evidentiary basis for the income level to be imputed must be present. Simply being enrolled in an educational program does not halt support obligations. Further, quitting secure employment in pursuit of a career change is more difficult to justify. Courts are less likely to impute income where an education program is pursued after job loss. A failure to provide necessary information, such as financial disclosure, or a history of deceptive behaviour, may also result in a court imputing income.
Courts are guided by section 19 of the Child Support Guidelines when determining whether to impute income to a parent that is intentionally under-employed or unemployed for reasonable educational purposes. The parent must establish that his or her educational needs are reasonable, and that under-employment or unemployment is required by virtue of his or her educational needs.
At Nussbaum Law, we understand the full particulars associated with the calculation of support obligations. We are committed to assisting our clients by ensuring support obligations accurately reflect the circumstances at hand. If you have concerns with how a parent’s enrollment in school can impact support obligations, please contact one of our experienced lawyers for assistance.