Imputing income in the face of alcohol addiction

Imputing income in the face of alcohol addiction

According to Conan O’Brien, scientists announced that they have located the gene for alcoholism and they found it at a party, talking way too loudly. Woody Allen declared that he himself was not a drinker and that his body would not tolerate spirits. In support of his claim, when he had two Martinis on New Year’s Eve, he tried to hijack an elevator and fly it to Cuba.

In contrast to such a light-hearted approach, alcohol addiction has been taken much more seriously by divorce and family law lawyers and referred to as a health problem and trying to deal with it requires a lifelong commitment. This is especially true in light of Covid when alcohol consumption is on the rise.

Accordingly, divorce lawyers recognize that many factors contribute to substance abuse and addiction and it may be impossible to isolate any single cause [Kaufman v. Kaufman, 2017 BCSC 1347, 2017 CarswellBC 2123 (BCSC)]. Family law lawyers are also mindful that any illness, including alcoholism, is rarely a matter of fault. However, when an individual attempts to use alcoholism to gain a monetary advantage in the courts, the refusal or failure of a party to take all reasonable steps to deal with whatever illness exists can be viewed critically [Day v. Day, 1994 CarswellNS 133 (NSSC)].

This concept of dealing with the illness is particularly highlighted when a party to a family law matter claims that alcohol addiction prevents them from earning an income. In such as case, the courts typically look for the following: (1) a professional opinion as to the ability or inability to work resulting from the alcohol addiction; and (2), efforts of the claimant to seek help for their addiction.

For example, in a 2016 Ontario Superior Court decision, the mother claimed that her failure to earn any significant income for several years was attributable in part to the fact that she was depressed about not being able to see her children and her turning to alcohol to cope. The court however concluded that the mother was not able to establish that her ability of earning an income was impaired due to depression or alcoholism. The significant aspect of the case was that the mother did not adduce any documentary evidence supporting her allegation that she suffered from depression or alcoholism during the period in question. Furthermore, having regard for her obligation to support her three children, it would have been incumbent upon her to seek out assistance and treatment to address these issues. To her detriment, the mother did not adduce evidence respecting any such efforts [Morden v. Pippy, 2016 ONSC 6886, 2016 CarswellOnt 17435 (Ont. SCJ)].

Similarly, a wife claiming support in Nova Scotia also lacked the evidence to support her claim. In Lane v. Lane, the wife claimed to be unemployed due to her alcoholism. However, the court held that there was no medical evidence produced to support that the wife was unemployable at the time of trial as a result of either her alcoholic dependence or her mental health conditions. The evidence suggested that her recovery has been ongoing for almost two years at the time of the trial and there was nothing to suggest that the wife was unemployable. [Lane v. Lane, 2016 NSSC 81, 2016 CarswellNS 268, NSSC)].

In a contrary position, the court in a 2015 Nova Scotia decision did not impute income to a wife that had alcohol addiction. The wife’s psychiatrist testified that although she managed to work during the marriage even while drinking heavily, he was firmly of the opinion the wife was not fit to return to work at the time of trial. The psychiatrist testified that the wife’s problem was multi-factorial, including her difficult relationship with the husband, unresolved childhood issues, alcohol abuse, and the circumstances surrounding the separation itself. The court concluded that it would be unfair to impute income to the wife for purposes of spousal support in such circumstances. [Carter v. Carter, 2015 NSSC 273, 2015 CarswellNS 801 (NSSC)].

In general, divorce and family law lawyers look to reliable evidence and preferably by a professional that can provide an opinion as to how the alcohol addiction relates to their ability to earn an income. However, litigants must also keep in mind that a lack of evidence can be viewed negatively against a person claiming alcoholism as a reason for not being employable. This issue was highlighted in the 2015 Ontario decision of Pate v. Pate where the husband claimed that he was unable to work as a result of his anxiety and alcohol dependency. In Pate, the court drew an adverse inference against the husband for his failure to provide any credible medical evidence to support his self-prognosis. The court reasoned that although the husband deposed that he had been an alcoholic since 1995, he also deposed in a subsequent affidavit that he had his own landscaping and snow-plowing business from shortly after the parties were married. The court found that the husband, despite being a self-admitted alcoholic, was capable of earning “reasonable income” as he himself put it. [Pate v. Pate, 2015 ONSC 2024, 2015 CarswellOnt 6076, (ONSC)].

Therefore, when the issue of employability intersects alcohol addiction, the attention of divorce lawyers will primarily be focused on whether there is an evidentiary link between the addiction and the ability of being employed. However, divorce lawyers will also be mindful of the level of effort that the individual took in dealing with the alcohol problem itself. Consequently, the courts will typically be sympathetic to the trials and tribulation of the addiction to alcohol, but they will also demand evidence, specificity and the connection to the outcome being claimed.