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FactsEdit

Brule and his wife had one child. Brule had also fathered Odendahl's child, for whom he was paying support of $300 per month. In 1998, Brule's annual income was $63,613, however, his base pay, calculated according to a 40-hour work week, was slightly less than $50,000. He had earned the extra income by working overtime and by working shifts, which earned him shift premiums. In 1997, he earned an extra $20,000 in overtime pay as well as worker's compensation. He argued that no significant overtime income should have been imputed to him, as he wished to exercise more access to his children and as there was no incentive for him to work overtime as his bankruptcy had eliminated his debts.

IssueEdit

  1. What income level should be used to calculate the support payments?

DecisionEdit

Petition granted.

ReasonsEdit

While the court agrees that he's exercising access and may not have quite as much time to work overtime, that does not remove his ability to work some overtime. Both parents must continue to make a fair effort to earn as much as they earned historically. On the facts of the case, Aston held that an imputed income level (under s. 19) of $77,550/year was appropriate for the calculation of support. He was also ordered to share daycare expenses under s. 7(2).

RatioEdit

  • A court may impute any income as it considers appropriate under s. 19.
    • The list in s. 19 is non-exhaustive.
  • The courts will distinguish between intentional and unintentional under/unemployment. Only intentional under/unemployment will justify imputed income.

NotesEdit

This is not typical of court treatment of overtime or shift work; this was a very fact dependent decision.

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