In Trang v. Trang, 2013 ONSC 1980 (“Trang”), Pazaratz J. made the following comments about variation proceedings in cases where income has been imputed to the party seeking to vary a child support obligation: 51 When a court imputes income, that's a determination of a fact. It's not an estimate. It's not a guess. It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on - or wait for - representations from the payor. 52 A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either: a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before. Or, b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate. 53 If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications - as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong. 54 Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it. 55 Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated. 56 If for example the original support order imputed income because the court concluded an unemployed payor should have been working, it would be illogical to allow the payor to extinguish that determination by returning on a motion to change, with proof that he wasn't working. That wouldn't constitute a change in circumstances. 57 If a trial judge imputed income to a self-employed person on the basis that their tax return didn't reflect cash sales and excessive write-offs, there should be a presumption that so long as the payor maintains the same business activities and accounting practices, subsequent tax returns will be equally unreliable. 58 Imputed income matters. The reason why income had to be imputed matters. 59 If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation. 60 But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct - and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.
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