Social Media Evidence Used to Substantiate Father’s “Under The Table” Earnings In Child Support Case

Mark Feigenbaum

The Ontario Superior Court of Justice considered evidence from a Facebook page when considering a mother’s order to impute income of the father of her three-year old child at $45,000 per annum. The mother argued that the father was intentionally underemployed and unemployed, and that he was receiving “under the table” income as a way to evade creditors.

What Happened?

The parties were seeking a separation. A child of the relationship lived with the 29 year-old mother. The mother was in school and supporting both herself and the child through Ontario Student Loans, as well as a small amount of income from the father.

The mother asked the Court to impute the father’s income at $45,000 per annum, and sought an order that he pay support in accordance with the Child Support Guidelines. She asserted that the father earned $45,000 – $50,000 per annum working in construction while they had lived  together. The mother claimed that in order to make it appear like had little assets, the father would earn money under his social insurance number, as well as his own father’s social insurance number. The mother indicated that the father would do this so he could claim employment insurance under both social insurance numbers. She also argued that the father earned significant cash income on the side.

As evidence, the mother submitted information from the father’s Facebook page to indicate that he was living a lavish lifestyle. His page indicated that he had taken two trips to New York City, a trip to Ecuador, and included significant evidence of attendance at sporting events, concerts, as well as partying at various nightclubs.

The father denied that he earned $45,000 per annum, and that he was currently unemployed and receiving social assistance. He claimed that he was also being supported by his parents and new girlfriend and indicated an intention to return to school to pursue a career as a computer technician.

The father further argued that he is incapable of earning the amount of income that the mother was seeking to impute him. He explained that his work is seasonal and that he struggles to pay the current order of child support, which was $200 per month.

The Law

Section 19 of the Child Support Guidelines enables the Court to impute a party’s income if it determines that they are earning or capable of earning more income than they claim.

Imputing income is one method that a Court uses to determine the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they do not, they will be found to be intentionally underemployed.

Drygala v. Pauli set out 3 questions to consider when discussing this issue:

• 1) Is the party intentionally underemployed or unemployed?
• 2) If so, is the intentional underemployment or unemployed required by virtue of his reasonable educational needs?
• 3) If not, what income is appropriately imputed?

The party who seeks to impute income to the payor bears the burden (i.e responsibility) of showing that the party is intentionally underemployed or unemployed. There is no need to demonstrate specific intent to evade child support obligations; the payor is intentionally underemployed or unemployed if they choose to earn less than what they are capable of earning.

The court must consider whether the act is voluntary or reasonable.

Once a party successfully demonstrates that the payor is underemployed, the payor must then satisfy one of the exemptions to reasonableness. For example, it is unacceptable for the payor to return to school and not pay child support, unless it is justified that by a significant increase in earning potential that will benefit the child.

In considering the third question, the Court in Lawson v Lawson held that the court must consider the payor’s age, education, skills, health, employment history, available employment opportunities, and the standard of living during the parties’ relationship.

Also, according to the Ontario Court of Justice, a party’s lifestyle can provide the criteria for imputing income.

The Decision

The Court found the mother to be a credible witness. The father, on the other hand, was found not to be credible when describing his work history.

The Court also noted that the father failed to provide full financial disclosure. On September 18, 2014, the Court issued a detailed disclosure order and as of the date of the hearing, February 13, 2015, the father had failed to comply.

At the time of the hearing, the father provided partial disclosure but still failed to provide: his full income tax returns, his record of employment from his last employment, a letter from his union confirming that he was willing to accept all work and is on the hiring list, as well as his bank and credit statements for the prior year.

The father testified that he did not have his own bank account and previously had a joint bank account with the mother until she changed it into her name alone. When the Court asked the father where his pay went, the father admitted that he cashed cheques for a fee and it did not go into a bank account. It became apparent that the father was attempting to avoid creditors by not showing assets.

The father also acknowledged that his Facebook page was authentic, although he denied paying for any trips, sports or concert tickets, or the multiple alcoholic beverages at the parties that were pictured. It was his position that these were all paid by friends and family.

The Court determined that this evidence corroborated the mother’s testimony that the father manipulates various systems to obtain money. As a result, the Court held that the father was intentionally underemployed or unemployed.

In light of the above factors, the Court ordered the father to pay child support, in the amount of $384 per month (based on an imputed income of $42,500 per annum andfurther to the Guidelines tabled amount for one child).

Whether you are married or in a common law relationship, spousal support issues following the breakdown of a relationship can become complicated and contentious. If you are considering a separation, or have already begun the process, and have questions about how to protect yourself, you should consult with a knowledgeable family lawyer before taking any initial or further steps. Mark Feigenbaum is a highly skilled Toronto family lawyer. He brings together many years of litigation, corporate law, estate law, tax law, and accounting experience and applies this multi-faceted experience to family law disputes. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.