Recent Case: Imputing Income Beyond the Minimum Wage

Osanebi v. Osanebi 2023 ONSC 2546 

This is an endorsement based on an application for an uncontested trial.  The mother in this case sought the following relief: a divorce, decision-making responsibility for her two children and child support. The mother and father were married for 6 years before they separated. The father relocated to Nigeria and has not been involved in the children’s lives since separation. This case comment will only focus on the court’s analysis in awarding child support.  

Because the father failed to provide information and did not engage in the court process, s. 23 of the Child Support Guidelines empowers a court to draw an adverse inference against him. When a person has not complied with the disclosure requirements as set out in the Guidelines, it is common to impute income to them at the provincial minimum wage. If a person is seeking to impute an amount above this, evidence is required to support this.  

Justice Akazaki notes that courts need to rethink using minimum wage as the default income that should be imputed to parents who fail to make appropriate income disclosures. In fact, he feels that using minimum wage as the income to impute reveals an “unconscious class bias” towards assuming parents who neglect their family support obligations belong to a particular social class. This approach punishes custodial parents in working poor families who are more often than not, women.  

To support his reasoning, Justice Akazaki references: 

  1.  A report completed by Statistics Canada citing that minimum wage earners only represent 10% of the Canadian workforce (para 10); 
  1. A further study completed by Statistics Canada that indicates the average hourly wage in Canada is $30 per hour, or almost double the Ontario minimum wage (para 11); 
  1. He also asserts that average statistics are used as the default in most other areas of law. For example, in determining a personal injury award for damages for loss of earning capacity, average income is the default floor not minimum wage (para 12); 
  1. Using median income levels as the presumptive range would encourage more engagement in the family court process. This would in fact encourage parents who are required to pay child support to take part in proceedings and disclose minimum wage earnings in order to have income imputed at a lower amount (para 14).   

While the father in this case relocated to Nigeria, Justice Akazaki felt that the father should be expected to pay support based on the economic conditions of the location in which the children reside.  Ultimately, the father was imputed an income of $50,000 per year which he considered to be a level of income that is closer to $30 per hour.  

For those of you who may be supporting a woman who is seeking to impute income to a payor spouse, this is a wonderful decision that encourages women to consider imputing income at a median range rather than the minimum wage. Justice Akazaki notes, “until an appellate court states that the above reasoning is wrong, my view is that minimum wage should be reserved for cases where there is an actual employment history of minimum wage” (para 15).