What is the test for imputing income on the basis of intentional underemployment or unemployment?

Manitoba, Canada


The following excerpt is from HANSON v. HANSON, 2019 MBQB 5 (CanLII):

Payor spouses are still entitled to make decisions in relation to their career path so long as those decisions are reasonable at the time they are taken considering all the circumstances. The question is, what is reasonable in the circumstances (see Donovan v. Donavan at paras. 18 and 19). In determining whether to impute income on the basis of intentional under-employment or unemployment, the court ought to have regard to what is reasonable under the circumstances. The age, education, experience, skills and health of the payor are factors to be considered in addition to such matters as the availability of work, the freedom to relocate and other obligations (see Donovan v. Donavan at para. 19).

The following guidelines may be considered when determining whether to impute income: 1. There is a duty to seek employment in a case where a parent is healthy and there is no reason why the parent cannot work. It is “no answer for a person liable to support a child to say he is unemployed and does not intend to seek work or that his potential to earn income is an irrelevant factor”. 2. When imputing income on the basis of intentional under-employment, a court must consider what is reasonable under the circumstances. The age, education, experience, skills and health of the parent are factors to be considered in addition to such matters as availability of work, freedom to relocate and other obligations. 3. A parent’s limited work experience and job skills do not justify a failure to pursue employment that does not require significant skills, or employment in which the necessary skills can be learned on the job. While this may mean that job availability will be at the lower end of the wage scale, courts have never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because the parent cannot obtain interesting or highly paid employment. 4. Persistence in unremunerative employment may entitle the court to impute income. 5. A parent cannot be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations. 6. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. (see Donovan v. Donavan at para. 21)

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