What to do in court if you don’t know your spouse’s income?

You have to take the other parent to court to claim child support but you do not know their income. Now what?

If you are the parent who has the children after you separate and the other parent is not paying child support, you are likely going to go to court to try and get support for the children.

To explain this, we’ll pick some fictional names and use it as an example. Chris and Sarah. We will say they were married for 10 years and have 2 children.

Chris is the parent who has left the home and is not paying child support. Let’s assume he was a self-employed person. Sarah is the one who has their 2 children. Chris sees the children every second weekend but is thinking that paying Sarah anything for child support is a bad idea. He says he’s broke. After a year of trying to get any money, Sarah gets frustrated.

Sarah starts court and asks the judge to order Chris to pay child support. For a judge to order child support they must know an income for Chris. Sarah starts court and Chris is put under a mandatory order to produce his income information. Chris fails to do this. Let’s say Chris fails to do anything in relation to the court. He does not file any documents and ignores the whole thing.

Sarah is now in court and the judge wants to know what income Chris has to be able to pick an amount of child support. Child support is income based. Judges need evidence. This is not an exercise in guessing.

This puts Sarah into the position of asking the judge to impute income to Chris. It is essentially estimating an income and putting it in place for support purposes. If Chris is not going to participate, this is the risk he runs. The judge will assign him an income anyway.

Sarah then finds herself in an uncontested trial at the court and the judge wants evidence of Chris’ income. Sarah needs to give the judge all the evidence she can. If she has old income tax returns she has to file them with the court. Any banking records showing amounts deposited from Chris’ business income are needed.

Sarah knows Chris had always had cash income that Revenue Canada was not told about.

You may think that Sarah should get some evidence off the internet for the type of job Chris does in the area they live in. Not so fast. A job ad off the internet is hearsay. It’s not good evidence for the judge to make a decision. It’s a challenge to get the court to accept that evidence. It’s also likely very hard to find ads that hit exactly on the kind of business that Chris operates.

Sarah needs to get very specific to help the judge decide on a number for Chris’ income that she feels is reasonable.

Sarah needs to give the court very detailed evidence of the history of the family’s lifestyle and spending while Sarah and Chris were together. For example, if Chris paid for a new truck, with a $80,000 price tag, made all the payments, owned a big utility trailer, took everyone down south for vacation each year and Chris owned a boat, an ATV and ate out a lot; that evidence needs to be before the court. The judge then needs to know if the family was in lots of debts. If not, then the judge can use that data to make a lifestyle analysis. By assessing how much money the family spent, and seeing a shortfall from what Chris told Revenue Canada he earns, then the judge can impute income.

Sarah has to help the judge with very specific details. Asking the court to make a general assumption without evidence will not work. It’s not an arbitrary decision. It must be based on evidence.

If Sarah can’t come up with any evidence of what the family lifestyle was, she may be left with asking the court to fix Chris’ income at minimum wage. The court already knows that minimum wage is set by law and the court has to take notice of that, however that may be really low as compared to the lifestyle the family lived.

In summary, if you are going to court and you do not know the other parent’s income, start gathering as much evidence as you can of lifestyle and family spending. It may all seem overwhelming. If it is, remember you can call us to help you with the forms, with how to speak to the judge and how to present the evidence. You choose how much help you want and are not committed to us in any way. Just book a consult and we’ll help you.