Regular readers of my Blog will know that separated and divorced parents have an obligation to support their children. Implicit in this obligation is the notion that parents will optimize their income and earning-capacity; otherwise a court may impute income and calculate support obligations accordingly.
What is also implicit in this scenario is that not only does a parent have a duty to find work, but he or she will also use their “best efforts” to do so, and will strive to remain gainfully employed at full capacity, once paying work has been secured.
In a case called McCash v. McCash, 2012 ONCJ 503 the court had opportunity to assess this “best efforts” criteria, and considered a long list of factors and characteristics of the support-paying father of four children, who claimed to be unable to work due to some mental health issues. In arriving at the conclusion that, in light of his age and skills, the father nonetheless had “not used his best efforts to earn what he is capable of earning”, the court considered the following:
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- The fact that he was highly educated, had a university degree, and spoke several languages;
- He had extensive sales experience;
- Although he admittedly had mental health issues, they are long-standing and have been in place since 2006. They had not prevented the father from working in the past, earning over $40,000 in one year;
- He chose not to continue with counseling and medications that would assist him in dealing with his mental health issues;
- There was no evidence that the father could not work at a minimum wage job at least;
- He had not looked for work since losing his last job in 2011;
- He had not paid child support to meet the children’s basic needs, yet continued to buy gifts for them.
In this regard, the court was also entitled to consider more basic factors such as the parent’s age, skills, health, ability to relocate, availability of suitable work, persistence in working jobs that were below his or her skill and earning capacity, and unrealistic career aspirations, or self-induced reductions in income.
Overall, in this case the court concluded that – even taking his mental health issues into account – the father was under-employed. It therefore ordered him to continue paying a previously-set support amount of about $550 per month, based on an imputed income of $22,000 (which is what the court thought the father could earn if only he made an effort to look for work).
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