Mother’s choice to work fewer hours meant that income must be imputed to her

Mother and father of two children, now 14 and 10 years old, separated after 13 years of marriage. Father composed music for films and television, being paid commissions through his business and collecting royalties based on catalogue of works. Mother applied for equalization and determination of child and spousal support. Application granted. Mother did not meet evidentiary burden to show that father was intentionally under-employed. Father’s explanation about technological advances such as internet streaming having negative impact on his royalty income, driving him to hire top agent to help him find new contracts, was reasonable . Father’s income had fluctuated over years, suggesting volatility that might make it difficult to predict his income from year to year so it would be fairest to average amounts, including royalty income, from last three years for which information was available to fix income at $110,000. Mother, who was educated and capable of gainful employment, conceded that she was intentionally under-employed to prioritize children’s needs. Mother was taking steps towards goal of working at full capacity but she made choice to invest her significant inheritance in matrimonial home rather than selling it to redeploy equity to less costly residence and free up some funds for income-producing investments. Notwithstanding mother’s child care responsibilities, her choice to work fewer hours than she was capable of working and her choice to invest inheritance in house rather than to generate income meant that income must be imputed to her. Mother would be imputed income of $18,000 for three years ago, $25,000 for last two years, and $35,000 for current year, as this income imputation would allow her to take some time to retrain and to seek employment affording her flexibility to be available to children.

Wilton v. Myhr (2019), 2019 CarswellOnt 2748, 2019 ONSC 77, Dietrich J. (Ont. S.C.J.).

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