Canada Court Watch - Family Justice Review Committee
Policy and Position Statements

Imputing of income based on income potential for earnings relating to child support

(Currently under public review)

Discussion

In Canada, family court judges often "impute" a parent's income for the purpose of calculating the amount of child support to be paid by one parent to another. Some courts  may refer to this as "deeming"  The misapplication of the principles of imputing of income by the courts has caused great hardship to parents, children and their families.

The Compact Oxford English Dictionary has the following:

IMPUTE
verb (usu. impute to) attribute (something, especially something bad) to someone.  DERIVATIVES imputable adjective imputation noun. ORIGIN Latin imputare ‘enter in the account’.

Imputing of income can be based on two scenario's; 1) a person's potential ability to earn a specific amount of money (income potential) or 2) a person's standard of living (spending habits).

In this article, imputing of income based on one's earning capacity will be discussed.

To impute a person's income based on a person's potential earning capacity in a family court situation means that the judge will establish that a parent is earning a specific amount of money based on what that judge feels the person has the capability to earn, even though no evidence exists to support this income amount.  The parent can be literally living in poverty or living off savings, yet the court can order the parent that he/she has to earn more. This wrong use of "imputed income" based on earning capacity is simply peonage, which has been outlawed in most counties for over a hundred years.

Often in court, a parent can submit copies of tax returns to validate income but a judge can simply ignore these government records and "impute" the parent with what the judge believes what the parent's income should be.  Imputing a person's income is often based on a judge's feelings, hunch, intuition or as some claim, what side of the bed the judge gets up on in the morning.  The imputing of income by judges is in the vast majority of cases, used to make child supports payments higher.

The ability of a family court judge to impute a parent's income subjects parties in a family law dispute to an arbitrary and discretionary process in which errors, abuse of power and the violation of a parent's rights and freedoms are bound to occur.  This inevitably causes hardship and harm to the child of that parent and erodes the public's faith and confidence in the family court system.

Imputing income is a process which is not transparent or accountable and in most cases is based on the sole discretion of a judge without any form of reasonable proof that such income exists or can be realized.  Judges often impute incomes at levels far in excess of the amount needed to maintain a reasonable and healthy lifestyle for children.  Many parents who have had their incomes imputed refer to this practice as a form of government extortion. Democracy and freedom cannot possibly exist where a state is dictates to its citizens what they must earn under threat of fine or incarceration for failing to do so.

Although the concept of imputing income may be good intentioned, the administration of Justice must require that Judges make decisions based on reasonable and credible evidence before the court. Giving a judge the power to arbitrarily determine a person's income without any reasonable evidence is not in accordance to the fundamental principals of Justice and the Rule of Law. Imputing a person's income is much like finding a person guilty until they can prove their innocence, a concept that should have no place in our system of justice.  It is in the public's interest and the administration of Justice that the basis of the judge's decision be clearly supported by the evidence before the Court.

Analysis of some past family law cases where income has been imputed for parents clearly shows that decisions were made by some judges without any reasonable evidence before the court to support the judge's decision.  In some cases, it would appear that the imputing of income was used by the court as a form of punishment against a parent.    Such arbitrary and unjust decisions by judges have resulted in documented cases where parents have taken their own lives or have been forced into hiding in other countries. Many children and parents have suffered because of such blatant and unfounded decisions. Most parents cannot afford the costs to appeal the judge's decision once it is made.

The imputing of income in a sense it is a form of slavery and a violation of a persons rights, freedom and dignity because what it does is to impose an expectation by the court that a particular  parent must make a certain amount of money just because they have children and have now become separated from their partner. In many cases, if a parent does not earn what a family court judge orders that person to make, then that parent often loses his/her driver's licence and is thrown in jail without the due process of law   When a judge imputes a parent's income, the judge is basically saying to that parent that they no longer have any choice as to the standard of living or lifestyle they are expected to maintain for their children.   Imputing income, in short, denies both logic and reality and, accordingly, is thoroughly unjust by definition.

If the courts were to began to order intact families to maintain a particular level of lifestyle for the children of that family, there would be public outrage. Yet family court judges do this everyday to parents who have been forced into separation by former partners, often against their wishes.

While there are tens of thousands of parents in Canada who collect social assistance and living off social assistance and choose to maintain this sort of lifestyle, their income are not imputed by any court of law.  They are not ordered by any court to make more money. In most cases, families on welfare are investigated to ensure that they are not earning more money but never are they refused income because of the "potential" of any family member to earn money.  In some cases, medical doctors and other professionals from third world countries have immigrated to Canada and now live off social assistance out of choice and yet they are not expected to earn an income based on their previous education and experience.  These people who now live in Canada off social assistance are not expected to work harder or to earn more money to support their children.  Yet, non-custodial parents who are facing family court are routinely ordered to earn an amount of money which a family court judge has determined, at his/her discretion, that the parent must earn.  Imputing income is based on one's earning capacity for parents who are separated and/or divorced clearly a form of discrimination based on marital status.

The bottom line is that imputing of income based on one potential for income for the purposes of calculating child support is a gross violation of one's personal rights and freedoms and contrary to the fundamental Principals of Justice.

In reference to imputing a parent's income for the purpose of child support, it is the position of the Family Justice Review Committee:

  • That imputing income based on one's potential earning capacity for the purpose of calculating child support should not be permitted under law and that the imputing of income to parents who are separated/divorced, in essence, is a form of discrimination based on marital status.

  • That citizens have the right and freedom to work where they choose to work and to to pursue whatever career opportunities they wish to follow in their lifetime and that no court should have the power to restrict these personal rights and freedoms by forcing a parent to make an arbitrary amount of money or to be employed in any particular sector of the economy.

  • That citizens have the right and freedom to choose the standard of lifestyle to which they wish to live and to pursue whatever career they wish providing they have the financial resourced to do so and also providing that; (a) they do not expected themselves or their children to be financially supported by other citizens and, (b) they can provide minimum living standards for their children. [persons who are living off welfare but who can work do not have the right to not work and must show that they are pursuing some form of employment]

  • That income from employment should be based strictly on the sworn financial statement of the parties unless there is other compelling evidence provided to the court which would reasonably show that a parent is earning money above that which the parent has claimed and that the parent's sworn financial statement to the court is fraudulent and was intended to deceive the court.

  • That the burden of bringing evidence before the court in regards to a parent's financial income, if that parent's sworn financial statement is being disputed, should lie with the person or agency bringing the parent to court.

  • That no government or government agency shall intercept, garnishee, seize or otherwise take from any citizen an amount of money which would cause that citizen or any of his/her dependants to be placed into poverty.

  • That no citizen shall be incarcerated because of failure to pay child support which was based on an income which was imputed by the courts.  Debtors prisons for child support should not be part of the system of  Justice in Canada.