What is the test for an intentionally under-employed father to seek employment?

[17] It makes no sense to me that someone with the father’s skills and experience would, for six years, choose to continue a self-employed venture that provides him with an income that would make him eligible for social assistance. The one job application he referred to was only made in April of 2008. His failure to seek employment in these circumstances is unreasonable. The first part of the test in Drygala v. Pauli is met. I find that the father is intentionally under-employed.

[18] Moving next to the second part of the test in Drygala v. Pauli, the father was unable to prove that his intentional under-employment was due to either the reasonable needs of the child or his reasonable educational or medical needs. His efforts to justify his inability to earn income can best be described as feeble. To a large extent, he focused his blame on the mother, which was entirely irrelevant, except to the extent that it revealed to the court his hostility towards paying her any reasonable level of child support. He claimed inability to work due to medical reasons, but provided absolutely no medical evidence in support. Further, his statements during his questioning about how hard he works contradicted the medical excuse. He offered no evidence that the economic climate in his field had deteriorated in any way. He offered no evidence that he would be unable to obtain employment if he actively sought it. He offered no valid reason why he has not sought employment when his business ostensibly loses money.

[19] The third part of the test in Drygala v. Pauli is a little more difficult to assess at this stage. What income should be imputed to the father? Although a more accurate determination will be made at trial after all of the evidence is heard and tested, this should not preclude the court from assessing income on a temporary basis if the first two parts of the test in Drygala v. Pauli are met. To do otherwise would be unfair to the child and would send the wrong message to payors. The message that I want to clearly send to this father is that he has a child to support and the court expects him to take reasonable steps to earn what he is capable of earning to meet his obligation as a father. This father’s position in his submissions, “that it is the mother’s turn to support the child and do her share, because I mainly supported the child while I was working” is not acceptable. The child deserves much better from him.