My Ex-Spouse is Sick and Can’t Pay Child Support

Recently, I wrote about a couple who were married for eleven years and had two children together. That post focused on a failed motion to gain overnight access. This post looks at a different issue from the same Ontario Superior Court of Justice decision released earlier this summer. This issue is a common source of conflict, when an ex-spouse says they are sick, can’t work and can’t pay child support. This claim is typically followed by an allegation that the medical condition is exaggerated.

My Ex-Spouse is Sick and Can’t Pay Child Support

The father in this case was unemployed and collected government assistance. He had a Master of Science degree in biology and computer science. He claimed that he was unemployed due to a medical condition that prevented him from working.

The mother argued that the father was capable of working and asked that the Court impute an income of $65,000 per year. The father argued that his medical condition prevented him from working and that no child support ought to be awarded.

These parents were in Court a few months prior and the father was ordered to provide a letter from his doctor explaining his health condition and how it impacted his employment. At the time of this decision, the father still had not complied with that Order and he did not have an explanation of why. While the pandemic situation may have been part of the reason, that argument becomes more difficult to make after seven months.

Child Support Calculation When a Parent Can’t Work in Ontario

The Judge in this case noted that the father still hadn’t provided any evidence on his medical condition. A failure to provide evidence and a failure to prove a claim of a medical condition was harmful for the father. When you can’t prove what you are claiming, a Judge simply can’t take your word at face value.

As this motion was simply for an interim child support award, the outcome wasn’t as significant. Typically with a Final Order, you must prove a material change in circumstance to get the Order changed. An interim award simply means that you can have the Order reviewed without establishing a material change in circumstance.

The Judge reviewed the law on imputing income for parents who are not working, or who are underemployed. The relevant law here is section 19 of the Child Support Guidelines (Ontario), which gives the Judge the authority to impute income. The Judge found that the evidence presented did not support the father’s medical claim. Based on his educational background and his work experience, the Judge imputed an income of $40,000 per year.

A $40,000 per year income for two children resulted in monthly child support of $597. The Judge specified that this was an interim Order and the father could have it reviewed once he provided medical evidence. The Judge also added that continued non-compliance with the Order to provide medical evidence would preclude the father from making further motions to the Court.

Doctors Looking at X-Ray

I Am Sick and Can’t Pay Child Support in Ontario

There will be times where a medical condition prevents a parent from working. And likely there are times when a parent simply doesn’t want to work, potentially out of spite. Differentiating between these two scenarios is difficult. Nobody wants to force someone to work if there is a legitimate medical condition. On the other hand, making selfish decisions to the detriment to the children, only to get back at your ex-spouse, needs to be addressed.

If you are legitimately unwell and can’t work, gather some medical evidence to prove your claim. This medical evidence needs to provide sufficient information to the Court to prove what you are saying. It is quite common for doctors to provide “sick notes” that simply say you are sick and can’t work. This isn’t enough.

Proper medical evidence to prove your claim means a medical diagnosis as well as a prognosis. Specific medical issues are private and don’t necessarily need to be disclosed. But you do need to disclose what your limitations are and when those limitations will no longer impact your employment.

For physical injuries, this is very simple to address. For example, if you suffered a fall at work and broke your leg, it is easy to say that you can no longer perform your construction duties. Along with this statement will be a further statement that your recovery will take six weeks (as an example), at which time you will be returning to work.

Mental Health Conditions and the Impact on Child Support in Ontario

Mental health injuries are different and will require a lot more information than simply saying “can’t work due to mental health”. In the past, nobody spoke about mental health conditions, but these barriers are being broken down. Experiencing the trauma of a high-conflict divorce can create mental health issues, but you still need to have some prognosis for your recovery.

Mental health issues can cause conflict if one of the parties is not compassionate about the situation. Communication about the condition can alleviate some of the conflict.

If you are looking to have a Judge accept your evidence of a mental health diagnosis, then you need to file actual evidence with the Court. This can mean the current diagnosis, the current treatment schedule and the prognosis based on the treatment schedule. If you are looking for a finding that you are permanently unwell, then the evidence needs to be strong to support that claim.

The Difference Between an Interim and Final Child Support Order

Immediately after separation, child support needs to be paid. This means that the amount of child support is decided with very little information. For all parents who earn a salary, this isn’t an issue, as support will be owing based on your Line 150 of last year’s income tax return.

If the parent is earning an income through their own corporation, then the calculation is a lot more difficult. Many items can be lawfully deducted to reduce taxes owing. These same items can’t be deducted for the purpose of calculating child support owing.

This means that a Judge is making an informed guess on what level of support needs to be paid. As part of this guess, there is no live evidence and no way to test the truth of the statements being made. As such, the child support awarded is on an interim basis only. When new information is obtained, the interim order can be adjusted as necessary, which isn’t always possible on final orders.

A final child support (or spousal support) Order will be made after the parties agree or after a trial. At this point the Judge has weighed the evidence and made finding of fact to support the decision. This also relates to the medical evidence you need to prove your claim.

The doctor who provides the medical evidence may be subjected to cross-examination at trial. Likely this wouldn’t be necessary on an interim application, but come time for trial, this may happen. This is the opportunity for the skeptical ex-spouse to test the medical evidence.

Questions About Child Support Calculations in Ontario

Contact Hearty Law with any questions on child support, spousal support, or any other family law financial need. Hearty Law serves Toronto, Ottawa and surrounding communities.

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