WHAT IS THE EVIDENCE FOR DELIBERATE UN(DER)EMPLOYMENT?
The decision of Tillmanns v.Tillmanns, 2014 ONSC 6773 is interesting. You can find it here. In that decision, the Honourable Mr. Justice Pazaratz considered a Mother’s claim that the Father was deliberately under-employed
The Father was laid off as a labourer. He opted to receive a severance package because he believed (correctly) that his employer was going out of business.
The Father did search for work that was similar in both pay and requirements. He was unsuccessful. He enrolled in, and successfully completed, a course as a plumber’s apprentice. He worked for part-time help while at this course.
The Mother argued that the Father was deliberately under-employed. She cited the following:
- There was a spelling mistake in his résumé.
- There were other job opportunities in internet postings
- The plumbing job was chosen because it would allow him to “work under the table”
Justice Pazaratz disagreed with the Mother’s position. He concluded that the test for deliberate underemployment is the reasonableness of the Father’s actions. Determining the most lucrative possible option is, by its nature, speculative.
Justice Pazaratz held that there was no evidence that the Father wanted to evade paying child support. He always paid in the past and informed the Mother when he was laid off. The mistake in the résumé was an honest one.
The most important aspect of this decision, however, was the Mother’s attempt to prove that other options were available by downloading job postings from the internet. Justice Pazaratz held as follows:
Both parties attached to their affidavits numerous exhibits which amounted to little more than scattered downloads from the internet:
- The Applicant filed articles suggesting the printing industry is healthy, with the implication the Respondent could easily have found a job. Under even rudimentary questioning it became obvious the Applicant knew very little about the authors or the accuracy of the information. Most of the internet print-outs didn’t even purport to relate to a job-seeker’s situation in Hamilton, Ontario.
- The Respondent attempted to rely on an equally unhelpful collection of unsworn print-outs from various websites, newspaper articles, etc, in support of his contention that employment options in the printing industry are bleak, and that plumbing is a good trade to learn.
- During submissions one of the counsel admitted all of these materials were either inadmissible or to be given little weight. She said she only attached internet downloads as exhibits because the other side did the same thing.
Internet articles are not admissible by themselves because the author of the opinion has to be present to be examined and cross-examined. They must be adopted by an expert so that they can become, in effect, the evidence of the expert. Absent such evidence, they are of no evidentiary value and are inadmissible. Children’s Aid Society of the Regional Municipality of Waterloo v. S.S., 2010 ONCA 630 (Ont. C.A.).
If the issue is deliberate underemployment, do the parties need to retain an expert? If so, what type of expert?