Jardine v. Grant, 2016 ONCJ 638

Court File and Parties

Court File No.: Halton 582/98 Date: 2016-06-27 Ontario Court of Justice

Between:

Rachel Jardine, Applicant

— AND —

Robert Cory Grant, Respondent

Before: Justice Sheilagh O'Connell

Heard on: November 2, 3, 22, 2015

Written Submissions received on: December 11th and December 22nd, 2015

Reasons for Judgment released on: June 27, 2016

Counsel:

• Laura Oliver, for the applicant
• Dorothy Kosinska, for the respondent

O'CONNELL J.:

1: INTRODUCTION

1The Respondent, Robert Cory Grant ("the father") has brought a motion to change the child support provisions of the Final Order of Justice Kerrigan-Brownridge, dated October 27, 2006 and seeks the following orders:

1. The Final Order made October 27, 2006 for child support for the two children of the relationship, namely Kaitlin Ashlyn Jardine, born June 2, 1991 ("Kaitlin"), and Aaron Robert Cory Jardine, born July 1, 1996 ("Aaron"), shall be varied on a final basis to provide that from January 1, 2013 to June 30, 2013, the father shall pay child support to the Applicant mother ("the mother") for the two children in the amount of $386 per month based on the father's imputed annual income of $26,000.00 in accordance with the Ontario Child Support Guidelines;

2. The child support provisions in the Final Order for the child Kaitlin be terminated effective June 30, 2013;

3. Commencing July 1, 2013, and on the first day of each month thereafter, the father shall pay child support only for the child Aaron in the amount of $210 per month, based on the father's imputed annual income of $26,000.00, in accordance with the Ontario Child Support Guidelines;

4. The father's obligation to pay child support on behalf of the child Aaron shall end when Aaron finishes his first post-secondary degree or diploma, or turns 23 years of age, whichever date is earliest.

2In her Response, dated August 23, 2013, the applicant mother ("the mother") seeks a dismissal of the motion to change although she concedes that child support should terminate for Kaitlin effective July 1, 2013.

3The mother further seeks retroactive section 7 expenses for Kaitlin in the amount of $18, 550.00 dating back to Kaitlin's post-secondary expenses incurred in the 2009-2010 school year upto and including 2012-2013 school year, and retroactive and ongoing section 7 expenses for Aaron.

4The trial in this matter proceeded over three days. The parties agreed to hold a focused trial of the issues pursuant to Rule 2 of the Family Law Rules, O. Reg.114/99. The affidavits, financial statements and document briefs filed by the parties constituted their direct evidence. Both parties testified and were cross-examined on the evidence filed. Several volumes of documentary evidence and exhibits were filed.

5In addition, the parties' adult children were called on behalf of the mother to give evidence regarding their post-secondary education and expenses.

6In the father's opening statement at trial, the father revised his position and sought to have income imputed to him at a rate of $30,000 per annum effective January 1, 2013 and for child support going forward.

7As well, the parties filed an Agreed Statement of Facts in which it was acknowledged that child support for Kaitlin should terminate effective June 30, 2013 and that she has not been entitled to child support since that time.

2. THE FATHER'S POSITION:

8The father submits that since the 2006 Final Order was made and since the time that he brought a previous motion to change in 2009 (heard by Her Honour Justice June Maresca), three changes in circumstances have occurred, and as such, it is no longer appropriate to impute income to him in the amount of $88,000.00 per annum:

1. the father became a T4 employee at Mercedes-Benz Autohaus in January 2012 and as a salaried employee, earned $32, 583.80;

2. the father suffered a workplace accident in March 2013 and as a result he is currently receiving CPP disability benefits, the test for which is a "severe and prolonged mental or physical disability", such that he is incapable of regularly pursuing any "substantially gainful" employment;

3. the child Kaitlin graduated from university in June of 2013 and the parties have agreed that she is no longer eligible for child support and has not been eligible for child support since June 2013.

3. THE MOTHER'S POSITION:

9The mother submits that the father has previously brought this same motion unsuccessfully and as such the issues are res judicata and the motion to change should be dismissed.

10The father had previously sought to change the Final Order of Justice Kerrigan Brownridge in a motion to change hearing before the Honourable Justice June Maresca, who dismissed the motion in 2009. The mother submits that in this motion to change, the father is advancing the same arguments in the hearing before Justice Maresca, all of which have no merit. Further, the mother does not believe that the father is disabled and incapable of working full-time.

11The mother submits that the father has a lengthy history of failure to provide full, accurate and frank financial disclosure. It is her position that the father's lifestyle and expenses indicate a significantly higher income than what he is disclosing and that other courts have imputed income to him for this reason. According to the mother, the father has not met the onus necessary to justify a change in the income imputed to him of $88,000 per annum.

4. ISSUES:

12The issues for me to decide are the following:

1. Is the father's Motion to Change res judicata?

2. If not, has there been a change in circumstances since the Order of Justice Kerrigan-Brownridge that affect the child support provisions in the Final Order?

3. If so, what is the father's income for child support purposes?

4. What, if any, contribution should the father continue to make towards the children's post-secondary or section 7 expenses?

5. Is the mother entitled to seek a retroactive contribution to section 7 expenses for the daughter, who is no longer entitled to child support?

6. Depending on the determination of the father's income, what arrears of child support, if any, should be paid?

5. BACKGROUND:

13The father is 45 years old. The mother is 48 years old. They are the biological parents of two children, Kaitlin, age 25, and Aaron, age 19 (Aaron will be 20 years old on July 1st of this year).

14The parties commenced living in a common-law relationship in 1990 and separated in 1997. The parties entered into a separation agreement, dated February 20, 1997, which was filed as an exhibit in these proceedings. Both parties received independent legal advice prior to signing the agreement. The agreement provided that the children remain in the sole custody of the mother and that no child or spousal support is payable. The jointly owned family residence was transferred to the mother and the maternal grandmother upon the mother paying the father the sum of $10,000.00.

15Regarding child support, paragraph 8 of the Separation Agreement reads as follows:

"It is understood at this time that the Husband is not working. Once he is working, he will advise the Wife and commence paying reasonable child support as along as the child is considered a child within the meaning of the Divorce Act , Canada."

16The mother commenced an application for child support in 1998, approximately one year later. On June 29, 1998, the matter was heard before His Honour Justice Theo Wolder, who made an order requiring the father to pay child support for the two children in the amount of $271 per month, commencing June 1, 1998, based on an imputed income to the father in the amount of $18,900.00. Justice Wolder found that the father had failed to make complete financial disclosure as ordered by His Honour Justice Karswick on May 26, 1998 and that the father had been receiving unexplained revenue. The court further found that the father's lifestyle suggested that income should be imputed to what was essentially a minimum wage level at the time.

17According to the Reasons for Judgment of Her Honour Justice June Maresca dated March 31, 2009, the Family Responsibility Office's Director Statement of Arrears dated May 7, 2008 indicated that from the date of Justice Wolder's order until August 2001, the father made no voluntary payments of child support.

18In July 2005, the mother brought a motion to change the Final Order of Justice Wolder to increase child support. On December 9, 2005, His Honour Justice Stephen Clark made a temporary order for child support in the amount of $446 per month based on an income imputed to the father in of $39,000 per year.

19On March 7, 2006, Justice Clark made a further temporary order that the father pay child support for the two children based on an imputed income of $30,000.00 as well as a contribution to the children's section 7 expenses pending a final hearing.

20The mother's motion to change was heard on a final basis by Justice Kerrigan Brownridge, whose final decision was issued on October 27, 2006. The motion to change was heard as a trial of an issue, with opportunity afforded to both the mother and the father to call evidence. Both parties attended the hearing and the mother provided sworn testimony. The father chose not to testify however he acknowledged the documents contained in the mother's trial record.

21Based on the evidence provided, Justice Kerrigan Brown determined that the father's income at that time should be imputed at $88,000 per year, commencing August 1, 2005. The final order was therefore made setting child support for the two children in the amount of $1257 per month in accordance with the Child Support Guidelines.

22Justice Kerrigan-Brownridge provided a written endorsement explaining her decision. She reviewed the documentary evidence filed by the mother and found that the father's lifestyle was inconsistent with the amount of money that he claimed he was earning at the time. She further found that the father had failed to make complete financial disclosure and that he declined to provide evidence at the hearing to refute the mother's claims. Justice Kerrigan Brownridge states the following in her Decision:

"In her evidence, she [the mother] has established that while the respondent claimed gross annual income of $8,356.00 and $21,400.00 for the years 2002 and 2003 respectively, he was able to maintain yearly net expenses of $59,245.70. It is her evidence that these expenses are based on documentation that the respondent did disclose and she asserts that he is actually meeting expenses greater than this.

She points out that the respondent did not provide disclosure of his bank accounts nor his credit card statements and she believes that he is hiding income as he must be making enough money to support his expenses. It is her testimony that, to support expenses even at 59,245 daughters per year, the respondent must have a gross annual income of at least 88,000.00. The respondent has not provided evidence to refute the applicant's claims."

23On June 1, 2008, the father brought a motion to change the final order of Justice Kerrigan Brownridge. The father requested that the order be varied, retroactive to August 1, 2005 such that he pay child support for the two children in accordance with his actual income from all sources, based on the Child Support Guidelines.

24In the mother's response, she sought an order dismissing the father's motion or in the alternative, an order for summary judgment dismissing the motion to change for want of a cause of action. The mother also sought an order that the father be prohibited from bringing any further motions to vary unless he provides full financial disclosure as ordered by the court on November 19, 2008. She further sought an order requiring that the father post security for costs in the amount of $10,000 prior to the hearing of the motion.

25The motion to change hearing was argued before Her Honour Justice June Maresca on February 13, 2009 and March 12, 2009. The parties agreed that the hearing could proceed on the basis of the written materials filed. Therefore no viva voce evidence was called and there was no cross examination on the written materials. Both counsel presented arguments and the court then reserved its decision.

26According to Justice Maresca's reasons for judgment, the materials filed on the motion to change was voluminous. Four volumes of the continuing record were considered as was the father's disclosure brief.

27After reviewing all of the written material filed, Justice Maresca dismissed the father's motion and did not make any of the ancillary orders sought. In her reasons, dated March 31, 2009, Justice Maresca made the following findings:

"Although the respondent filed a great deal of disclosure, he did not, in fact comply with the disclosure order made on 19 November 2008. For example he failed to disclose records for two bank accounts; he did not include CIBC Visa statements as ordered; he did not disclose statements for an RBC Visa and the Canadian Tire credit card, his reasoning being that he was only a secondary cardholder; and he did not disclose the attachments and supporting documents for his tax returns….

The respondent submitted affidavit evidence to suggest that many of his acquisitions were actually owned by a former girlfriend. Included in the list of such items are his Blackberry, his BMW car lease and payments, at least half his rent, and up to 70% of his expenses. The respondent's materials indicate that he and his former girlfriend began living together in 2004, and separated in 2008. The affidavit material suggests that this girlfriend was maintaining the respondent throughout this period. In my view this information was either available to the courts when the previous motion to change was heard in October 2006 or could have easily been a made available to the court at that time. The evidence does not in my view establish a material change in circumstances.

The material filed by the respondent is replete with contradictions and inconsistencies… These discrepancies were not explained in any meaningful or coherent way. They became even more suspect given the fact that not all of his bank accounts were disclosed. The evidence did not reveal that the respondent suffered any significant change in lifestyle over the past three years….

The respondent chose not to testify in these proceedings. He chose not to explain the discrepancies in his documentary evidence. He also chose not to cross-examine the applicant on any of her material. The court is left with only the written materials filed by the parties to form the basis of the determination on the motion.… It is virtually impossible, given the type and quantity of information available, to make an accurate determination of the respondent's actual income. The court must then look to the respondent's lifestyle to assist in coming to such a determination. The respondent is in essentially the same circumstances as he was in 2006. As noted above, he resides in the same home, drives the same car, is self-employed in the same line of work, and appears to enjoy the same lifestyle. I am not satisfied on a balance of probabilities that the respondent has established a change in circumstances which would justify any variation of the order of Justice Kerrigan Brownridge of October 27, 2006." [page 5 to 8 of the Judgment.] [Emphasis added.]

28The Family Responsibility Office commenced a default hearing in 2009 regarding the enforcement of Justice Kerrigan Brownridge's Order. A Final Default Order was made by the Honourable Justice Manjusha Pawagi on April 14, 2009. The child support arrears were fixed at $29, 943.85. Justice Pawagi ordered the father to pay the arrears at a rate of $743.00 per month, in addition to the ongoing support of $1,275.00 per month per Justice Kerrigan Brownridge's Order, for a total of $2,018.00 per month until the arrears are paid in full.

29According to the most recent Statement of Arrears filed in these proceedings from the Director of the Family Responsibility Office, the father paid all of the arrears owing under the Final Default Order of Justice Pawagi by July of 2013 and continued to make payments towards the ongoing child support. The father testified that he borrowed the money through a friend's line of credit, to be later addressed. However, arrears started accumulating again until the child support was adjusted by Justice Zisman's Order dated October 7, 2013. At the time of the hearing before me, the arrears were approximately $3,000.00.

The Motion to Change Currently before the Court:

30The father brought this motion to change on April 17, 2013. It was amended on December 16, 2014. The father originally brought the motion to change because he claimed two changes in circumstances: 1) the change in Kaitlin's circumstances in that she would no longer be a full-time student after graduating from York University in May of 2013 and therefore ineligible for child support; and 2) the change in the father's circumstances because he was no longer self-employed as a model and personal trainer.

31In January 2012, the father commenced full-time salaried employment as a "service detailer" for the Mercedes-Benz Oakville Autohaus and stated that he was no longer self-employed as a model. According to his T4 earnings from that employer, his annual employment income was $32,583.80.

32However, the father claimed a second change in circumstances in March 2013 when the father sustained a workplace injury as a result of an accident that caused him to be unable to continue working at Mercedes Benz. The father went on sick leave in late March 2013, which continued up until the time of the hearing. The father became eligible for CPP disability benefits and received a lump sum payment of long-term disability benefits from his employer's insurer in 2015 after successfully suing the insurance company that provided t insurance coverage through his employer.

33On August 27, 2013, the case management judge, the Honourable Justice Roselyn Zisman made a comprehensive consent order for financial disclosure that the father provide the following no later than 30 days from the date of her order:

a. for 2012, 2011 and 2010, the respondent's income tax returns and all attachments as well as his notices of assessment;

b. documentation to support the respondent's inability to work at the present time, including medical records, employment insurance, WSIB and disability applications/documentation;

c. all bank accounts in his own name or jointly owned as of January 1, 2013 to the present time;

d. any credit applications or loan applications made since January 1, 2013 or if none, affidavit confirming no applications;

e. copies of both lines of credit accounts since January 1, 2013;

f. any transfer documents regarding the 2003 BMW 330 since 2009;

g. proof of ownership of any of assets outside of Ontario or an affidavit confirming he does not own such property;

h. credit reports from Equifax and TransUnion;

i. to respond/explain modeling career/income/contract not disclosed;

j. either party may be questioned at a mutually convenient date, time and location.

34Following that Order, on October 7, 2013, on consent of the parties, Justice Zisman made a temporary order on a without prejudice basis that the father be required to pay $438 per month in child support to the mother for the two children, based on an imputed income of $30,000, effective October 1, 2013. This order continues to be in effect.

35At the time of the hearing before me, the father was in compliance with the ongoing support under Justice Zisman's Order of October 7, 2013. The arrears of $3,000.00 appeared to be related to the previous order of Justice Kerrigan-Brownridge that had accumulated prior to the adjustment in support.

6: SUMMARY OF THE RELEVANT EVIDENCE:

The Father's Financial Circumstances:

36The father lives in Burlington in a semi-detached home owned by his wife, whom he has been married to since December 10, 2010. The father's wife is a medical esthetician. She is self-employed and operates her own business. The father testified that he was not sure what her income was although he testified that she pays for the majority of their living expenses and handles much of the finances. They have no other dependants. His wife's parents, who live in Romania, have also loaned them money.

37The father testified that his wife purchased the home in her name in 2010 for $355,000.00 and qualified for a mortgage in the amount of $322,560.00. The mortgage payments are between $1,200.00 to $1,300.00 per month.

38Up until 2012 and for several years after the separation, the father worked as a model, a personal trainer and part-time actor. The father worked as a model for Sherrida Modelling Agency and Sutherland Modelling Agency. He had a personal training business called "Stones Handle It Fitness-Kickboxing". The father states that this business has been inoperative for a number of years.

39It is the father's evidence that he initially brought this motion to change as a result of the end of his modeling career and his kickboxing fitness venture and the commencement of his employment with Mercedes-Benz Oakville where he earned an annual income of $32,583.80. Additionally, he learned that Kaitlin was no longer in a full-time program of education and that she was working full-time.

40However, in March of 2013, the father testified that while working at Mercedes-Benz, he sustained an injury at work when he hit his head on a tool cabinet door. The cabinet door swung open on its own as there was no safety latch on it and hit the father on the head.

41The father testified that he only received first aid treatment at the time and that he did not expect to be off work as a result of the accident. However, the father was later diagnosed with a concussion and post-concussion syndrome by his family doctor. His concussion was diagnosed as being chronic and creating a marked limitation of functional capacity as well as severe sensitivity to light.

42The father sought a further opinion at the North Burlington Medical Center and on March 28, 2013, the father was diagnosed by Dr. Khindri as suffering from an acute concussion. In June 2013, the father began attending rehabilitation at a spinal care clinic in Burlington Ontario.

43The father testified that although the prognosis indicated that he should improve within four months to a level that would allow him to return to work, he continued to experience dizziness, headaches, and nausea and continues to feel unable to return to work.

44The father testified that he continues to have difficulty remembering things from time to time; he continues to feel tired and to experience severe pain. He testified that he has difficulty focusing and that his distress about his condition compounds the negative effects. was also prescribed oxycodone and other medications to manage his pain. The father also began experiencing anxiety and depression and sought psychological help.

45The father produced prescriptions for oxycodone, codeine, and cyclobenzaprine from Dr. Khindri which he currently takes to manage the pain and difficulties sleeping. The father testified that he stopped taking oxycodone and now uses the other medications to help him sleep and manage pain.

46Following the injury at work, the father testified that his 2013 income was comprised of the following: $9,433.57 from employment at Mercedes-Benz Oakville; $5,085 from employment insurance; $4,578.50 from WSIB; $3,778.56 from CPP disability; and $9,517.50 for modeling work with Sherrod at modeling that he had done in the past. His total income for 2013 was $32, 627.13. In 2012, when the father started employment at Mercedes-Benz Oakville, his salaried income was $32,583.80. The father produced documentary evidence for all of these figures and sources of income.

47The father still receives some modeling income in 2013 however he testified that this was from previous or past contracts that had yet to be paid. The father had been involved with three different modeling agencies over the years and that he primarily did print ads which were paid hourly or sometimes a lump sum. In his affidavit evidence in chief, he explained that the contracts between his agency and its clients for their use of his image could be signed for various lengths of time during which the client could use his photos without extra costs. If there was a request to reuse his prints after the expiration of the contract terms, there would usually be a renegotiation of the contract to the agency and the client that did not involve him however, once the agency received further payment for the renegotiation, he would receive a commission. The father explained this is the reason why he received income from modeling in the years that he has not modeled.

48In the past, the father has also done stock photography. Stock photography through a company such as Getty publishing involves a series of photos taken of the father through his modeling agency and then purchased by advertisers. The father was usually not aware of who purchases photos from stock photography. For stock photography the father is paid approximately $110 per hour or a set fee. He does not receive residual payments. The father has done television commercials as well as stock photography for business advertisements. Although these commercials were aired for a number of years, father was not paid residual fee.

49In 2014, the father testified that he continue to receive CPP disability income. The father produced documentation from CPP explaining the payment breakdown for 2013 and 2014. The father received a total income of $11,403.72 in 2014 in CPP disability benefits. He testified that he did not have any modeling jobs in 2014 and 2015.

50In 2014, the father brought a lawsuit against Empire Life Insurance company, the insurance company contracted to provide long-term group disability insurance coverage through his employer. This lawsuit settled in 2015 and the father was paid a lump sum of $30,000 in disability benefits. However after legal fees, the father received a net settlement amount of $16,575.87. He testified that he used this amount to re-pay the loans through his friend's line of credit, received to pay the child support arrears ordered under the FRO default hearing.

51In 2015, the father's income was CPP disability in the amount of $11,403.72 and $1200 from his Sherrida, his former modeling agency for past modeling work. In addition, the father received a settlement from his action against Empire life insurance in the amount of $16,575.87. The total amount of income received in 2015 was therefore $29,179.59.

52Currently, the father's only source of income going forward is his CPP disability benefits and he projects his income going forward to be approximately $11, 403. 00 per annum. The father testified that he is largely supported by his current wife who carries the bulk of the household expenses. His wife's parents have also loaned them money.

53The father testified that he is currently on a medical leave from his employer and that he can return to work on modified duties when he is capable of so doing. The father did not explain what the modified duties could be, nor when he anticipated returning to work.

54Pursuant to the Order for financial disclosure of Justice Zisman dated October 7, 2013, the father produced the following disclosure, among other additional disclosure provided:

1. copies of his income tax returns, notices of assessment and tax summaries and T4 A's for 2010, 2011, 2012, 2013, 2014;

2. copies of letter from father's counsel to Sutherland of models and Sherrida Modelling and the responses from both agencies confirming monies paid to the father in 2012 in 2013

3. copies of his pay stubs and records of employment and correspondence from his employer Mercedes-Benz confirming income for 2012 in 2013

4. copies of his WSIB approval for disability benefits dated April 4, 2014;

5. copies of his CPP disability statements confirming the payment breakdown for his disability benefits in 2013 and 2014;

6. copies of the injury/incident analysis reports regarding the workplace injury in March 2013;

7. copies of radiology and hospital records from Joseph Brant hospital dated April 23, 2013, June 17, 2013 after father attended for headaches and memory loss following concussion;

8. medical letter dated September 30, 2013 from Dr. Jane Storrie, clinical neural psychologist at the SVA Concussion Clinic;

9. record of employment from Autoworld Imports (numbered company that owns Mercedes-Benz Autohaus) dated May 7, 2013;

10. Workplace Safety and Insurance Board (WSIB) statement dated June 11, 2013;

11. letter from Empire life regarding the father's application for LTD benefits dated September 3, 2013;

12. copy of statement of claim for lawsuit brought by the father against Empire Life Insurance company dated February 12, 2014 for long term disability benefits as a result of workplace accident;

13. correspondence from father's civil counsel (SHARE Lawyers) confirming settlement received from Empire life insurance company for disability benefits in the amount of $30,000.00;

14. medical report dated March 27, 2013 from family doctor confirming concussion and post-concussion syndrome;

15. further follow-up medical reports from the North Burlington Medical Centre confirming diagnosis of acute concussion, as well as in initial assessment and progress notes from the spinal care clinic regarding concussion;

16. copies of all bank accounts held in his own name or held in joint names since January 1, 2013 to the time the disclosure order was made as required by the order dated October 7, 2013;

17. affidavit confirming no credit applications or loan applications made since January 1, 2013

18. copies of statements for all lines of credit accounts since January 1, 2013 that he owns or pays, including copies of statements from friend Neville Burger's line of credit who allowed him to use his line of credit to pay the child support arrears owing and the ongoing child support under the final order;

19. copies of all credit card statements since January 1, 2013;

20. proof of an inheritance interest in properties and lands on Johnson Road in North Preston, Nova Scotia as a result of his father's estate. However the father's mother continues to reside in the family home on the property and the property is subject to ongoing litigation as a number of family members are contesting ownership of the property. The father also produce true copies of correspondence from the Supreme Court of Nova Scotia dated March 22, 2013 July 10, 2013 confirming proof of the litigation and the ongoing dispute with respect to ownership;

21. credit reports from Equifax and TransUnion;

22. copies of correspondence from Sutherland Models confirming the father was released from their roster in February 2008 and since then they have had no further dealings with him;

23. copies from correspondence from Sherrida Modelling Agency confirming amounts paid to the father in 2012 and in 2013

55The mother was not satisfied with the disclosure produced and on a subsequent motion for disclosure on April 14, 2014, the mother sought to extend the time-lines for some of the disclosure that had already been produced to go further back historically then what was previously requested and produced. Further, the father agreed to provide the mother with the authority to request and receive information from third parties and signed authorizations and directions so that the mother through counsel could obtain any further information directly from third parties.

56In June of 2014, the father signed and delivered authorizations to permit the mother and/or her lawyer to obtain information regarding the father and all of the aliases the mother claimed the father also used from Bell Canada, Roger Wireless, Wind Mobile, Rogers, CitiFinancial, Sherrida Inc., Sears Financial, American Express, the Bank of Nova Scotia, and TD Canada Trust.

57The father was cross-examined extensively regarding his lifestyle and expenses, and his past lifestyle and expenses prior to 2013. This evidence will be addressed in the court's analysis later on in this judgment. The father testified that the only travel outside of Canada in the past three years was to Romania to visit his wife's parents, who are Romanian. The father and his wife stayed with her parents, The father denied owning any other cars, other than the 2003 BMW, which was now 15 years old. He testified, as he has done in previous proceedings that when he leased the BMW in 2008, his previous girlfriend paid the monthly lease payments, although his evidence was contradictory on this issue.

58The BMW lease payments were paid off in 2012. The father testified that he has a friend who provides him with services to repair and maintain the car, so the cost is reasonable.

59The father testified that in 2014, when the mother amended her pleadings in this proceeding, this was the first time that she asked for contribution to Kaitlin's section 7 expenses for the first time. The father gave evidence that the mother had never asked him for contribution before this time nor had she provided him with any information or documentation regarding Kaitlin's post-secondary expenses, which he understood to have been paid by a $40,000.00 education trust fund from the mother's parents (Kaitlin's grandparents).

60The father testified that the mother also asked for contribution to Aaron's post-secondary expenses for the first time in 2014. Although the father acknowledges that Aaron continues to be eligible for basic child support as he entered into a second year of university in the fall of 2015 and continues to reside with his mother, he testified that it was also his understanding that Aaron received a trust fund and gifted monetary endowment to pay for his post-secondary education which the mother has failed to disclose.

The Mother's Evidence:

61In 2015, the mother was employed at Inflamax Research Incorporated and earning approximately $129,095.04 per annum according to her sworn financial statement filed. Prior to 2015, her income from all sources was $73,295.13. The mother lives with her current husband and Aaron in Milton, Ontario. They live in a jointly owned home, according to her financial statement filed. At the time of the trial, the mother had recently left her position at Inflamax and it was uncertain what her new position or employment would be.

62The mother testified that she has been going to court since 1998 to obtain child support from the father. She expressed significant frustration with the father and his failure to provide full financial disclosure and adequate child support. According to the mother, the father employs "a catch me if you can" attitude to the determination of his income and he has never provided a true picture of where his money came from. She testified that the father always seems to find income for the lifestyle that he is living but never income for child support.

63The mother does not believe that the father is legitimately disabled. The mother testified that in August 2013, she saw the father driving in his BMW with the roof down, suggesting that he did not have any sensitivity to light. She believes that he has continued to hide income and that he and his wife enjoy a lavish lifestyle style. She testified that there has never been any evidence that his family or friends have given him money or supported him, nor does she believe that his wife is paying for the majority of household expenses.

64When asked what evidence the mother had with respect to a lavish lifestyle, the mother testified that the father continues to drive the BMW which she described as "a customized car" and she believes that the wife drives a Jaguar. Although the mother acknowledged that the BMW is a 2003 model, she believes that the car is still very valuable because it is very well maintained and that the maintenance alone is expensive. The mother could not point to any evidence in the documentary disclosure filed that the father and his wife travel regularly, wear designer clothes or use designer handbags.

65When asked what evidence the mother discovered after the father signed several authorizations permitting her counsel to obtain information directly from the father's financial institutions and other agencies and institutions, the mother testified that other than the information from American Express, the father instructed the banks and other third-party institutions not to disclose any information to her or her counsel. The mother believed quite strongly that the father instructed the Toronto Dominion Bank, one of his former modeling agencies and other institutions not to disclose any information to her or her counsel notwithstanding the signed authorizations provided by the father through counsel.

66The mother gave as an example the father's preparation of his recent income tax return as evidence of fraud. The father had identified himself as single and not married on his income tax return. The mother testified that it was only after she discovered his marriage that the father was forced to amend his income tax return. The mother did not believe this was an inadvertent error even though the father would receive greater tax benefits with married status other than single status, and that he had indicated in his sworn financial statement filed that he was married. She points out that when asked in court, the father testified he was single not married.

67The mother believes that the father is operating a number of different businesses under several different names and aliases, such as Cory Grant, Robert Beales, Stone Grant. The mother acknowledged that the father's counsel requested disclosure from all of the financial institutions regarding those names.

68The mother testified that the father does not want to work. He is never been an employee long enough at any place. In her affidavit evidence, the mother deposed that it was quite apparent to her that the father did not want to be an employee and she came to believe that he was involved in illegal activities, such as prostitution (as the person who arranges prostitutes for customers, known as a "pimp") to support his lavish lifestyle.

69The mother testified that she and the father have had several discussions about section 7 expenses and that the father was fully aware that the children were in school and needed assistance. The mother testified that she primarily communicated with the father by phone and by email and sometimes through her son Aaron.

70The mother acknowledged that there is no email correspondence to the father requesting contribution to section 7 expenses. The mother acknowledged that in her response to the father's motion to change in August 2013, she did not seek contribution towards the children's section 7 expenses, however, she served an amended response in April 2014 for seeking section 7 expenses. The mother acknowledged that the first time that she sought contribution towards the section 7 expenses was in 2014 in response to the father's motion to change.

71The mother testified that she paid for the children's education expenses through an RESP to which she solely contributed. She testified that Kaitlin's total educational costs were approximately $37,100.00, which she paid through the RESP. The mother denied that there was a $40,000 trust fund for Kaitlin's education. She testified that although there was money left for Kaitlin's education at the time of the parties' separation, she had to use this money to support herself and the children because the father refused to pay any child support for several years. She testified that she used the money from the trust to pay for the children's daycare and living expenses and then subsequently took out an RESP for the children's education which she paid for herself over the years.

The Adult Children's Evidence:

72Both Kaitlin and Aaron testified. It was not disputed that Kaitlin graduated from York University in 2013 and is currently pursuing a career in the music industry. She flew in from England to testify in this trial. At the time of the trial, Aaron was a second year criminology student at the University of Toronto and planning to go to law school.

73Neither Kaitlin nor Aaron had student loans, grants or bursaries during university (or currently for Aaron). Both gave evidence that they had part-time jobs that contributed towards some of their entertainment and social costs. Both lived at home while attending university. Aaron testified that his tuition costs were paid for through an RESP funded by his mother. Aaron drives his own car, given to him as a gift by his maternal grandmother. Kaitlin testified that she did not know if she had any school debt as her mother took care of all of the university expenses. Kaitlin testified that although she would not say that she was financially well off, she was comfortable as her mother always made sure that they were comfortable. Both Kaitlin and Aaron testified that their mother paid for everything and that it was not fair that their father had not contributed towards their support.

74Both children are estranged from their father or, it is fair to say, have a very strained and limited relationship with him. Both children were very aware of this litigation. Aaron testified that most of what he knows about the situation is from what his mother has told him. Aaron did not believe that his father's income had decreased based on his opinion of his lifestyle. The last time he saw his father was the summer of 2014. He described his father's home as "a regular middle-class home". He knows that his father and his current wife went to Europe once but he is not sure why they were there. He knows his father drives a BMW.

75Kaitlin testified that the last time she saw her father was Christmas of 2013. She testified that when she was approximately 14 to 16 years old, she recalls seeing her father's girlfriend having a designer handbag and expensive clothing. She was unaware that her father's girlfriend had a job and her own income.

76Kaitlin also testified that she did not believe her father was legitimately disabled, based on what her mother has told her.

77Kaitlin's testimony regarding her last encounter with her father and their estrangement was very emotional, both for her and for the father sitting in the courtroom, although Kaitlin did not believe that her father's tears were real. She found it very ironic that he was crying now as in her entire life she had never seen him cry. Based on her description of her last encounter with her father, the father's behaviour was immature, hurtful and inappropriate. The father chose not to reply to this evidence or cross-examine Kaitlin through counsel and was quite emotional.

78Both children are very composed, mature and impressive young adults. Although the mother attempted to establish the father had a lavish lifestyle through the children, this was difficult if not impossible given the children's very limited contact with their father for a number of years, and the fact that they have had no current contact with the father since he commenced this motion to change.

6. THE LAW AND ANALYSIS:

79The father's motion to change is governed by section 37 of the Family Law Act, R.S.O. 1990, c. F.3, as amended ("the Act").

80The test to be applied on a motion to change the child support terms of a child support order and the powers of the court on such a motion are set out in sections 37 (2.1) and (2.2) of the Act as follows:

37 (2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6.

37 (2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines. 1997, c. 20, s. 6.

81Section 14 of the Child Support Guidelines sets out the circumstances that may permit a variation in a child support order:

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

15. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

16. In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.

17. In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act , enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

18. In the case of an order made under the Act , the coming into force of subsection 33 (11) of the Act. O. Reg. 391/97, s. 14 ; O. Reg. 446/01, s. 3.

82The moving party on a motion to change child support only needs to prove, on a balance of probabilities, that there has been a change in circumstances, not a "material" change, within the meaning of the Child Support Guidelines or that evidence not available on the previous hearing has become available that would result in a different order.

83Once the court determines that that there has been a change in circumstances the court is entitled to re-assess the needs of the children as a result of change in circumstances and embark on a fresh inquiry as to the appropriate amount of child support. See Willick v. Willick 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 paras. 26, 100, 102 and 109.

84Although it is well settled law that if income is imputed, then the issue will generally be res judicata on a motion to vary or change support, in Trang v.Trang, 2013 ONSC 1980, the Honourable Justice Pazaratz explains how courts should address motions to change child support when income was imputed to a payor in the order sought to be changed at paragraphs 51 to 60 as follows:

"51. When a court imputes income, that's a determination of a fact. It's not an estimate. It's not a guess. It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on -- or wait for -- representations from the payor.

52. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:

(b) It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before.

Or,

(c) Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

53. If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications -- as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

54. Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.

55. Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.

56. If for example the original support order imputed income because the court concluded an unemployed payor should have been working , it would be illogical to allow the payor to extinguish that determination by returning on a motion to change, with proof that he wasn't working . That wouldn't constitute a change in circumstances.

57. If a trial judge imputed income to a self-employed person on the basis that their tax return didn't reflect cash sales and excessive write-offs, there should be a presumption that so long as the payor maintains the same business activities and accounting practices, subsequent tax returns will be equally unreliable.

58. Imputed income matters. The reason why income had to be imputed matters.

59. If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.

60. But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct -- and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court."

85The mere accumulation of arrears without evidence of a past inability to pay is not a change in or special circumstance. Present inability to pay does not by itself justify a variation order. It should only be granted if the payor can also prove a future inability to pay. Otherwise, the option is to suspend, or order repayment of arrears. See: Haisman v. Haisman (1994) 1994 ABCA 249 (CanLII), 157 A.R. 47 (C.A).

1. Has there been a change in circumstances since the Final Order of Justice Kerrigan-Brownridge and the Order of Justice Maresca or is the issue res judicata?

86In my view, applying the above law and legal principles, I find that since both the final order for child support, dated October 27, 2006 and the final order dismissing the father's earlier motion to change in March 2009, the father has established a change in the children's circumstances in that Kaitlin is no longer entitled to child support, and a change in his circumstances in that it is no longer appropriate to impute income to the father at the level previously determined by the court in 2006.

87I find, following the principles of Trang v. Trang, supra, that although income should still be imputed to the father, the evidence of his changed circumstances demonstrate that a different amount is appropriate.

88The court reviewed all of the documentary disclosure very carefully. The father's evidence regarding his medical disability and workplace accident was credible and supported by the corroborating documentary evidence.

89I found the father to be a credible witness on this issue. It was also apparent during the trial that the father was experiencing pain, and had difficulty focusing and answering questions.

90In cross-examination, the father admitted that he did not disclose some of the medical reports produced in the lawsuit against the insurance company, in particular the medical brief reports from Dr. Dan Dalton, a registered psychologist and therapist. The father testified that he chose not to produce those reports because of the personal information contained in those records.

91There was also some last-minute medical evidence produced during this trial which the mother's counsel asked me to draw an adverse inference about. Nevertheless, the medical evidence overwhelmingly supports that the father is suffering from post-concussion syndrome as a result of his workplace accident. The documentary evidence was not seriously challenged, in particular, the evidence that demonstrates the father was approved for and is currently receiving CPP disability benefits.

92The court also carefully reviewed all of the documentary evidence of the father's bank statements, credit card statements and line of credit statements produced. There was no evidence of a lavish, luxurious lifestyle. There was evidence of a modest lifestyle and the expenses incurred were not excessive.

93Notwithstanding the father's past failure to provide full financial disclosure, the court was satisfied with the current level of disclosure provided in this proceeding, no doubt with the assistance of his counsel. I find that the father had complied with the order for disclosure made by Justice Zisman in October 2013. The father provided extensive financial disclosure that demonstrated a relatively modest lifestyle. I accept the father's evidence that the majority of the household expenses are currently being paid for by his wife, a self-employed person who operates a medical aesthetician business.

94I was concerned that the father's wife was not called as a witness in these proceedings. Her total gross income or revenue was not disclosed, nor were her business expenses that she claimed as a self-employed medical aesthetician. Although the professional net income declared appeared modest, it did not mean that she was not paying the majority of the household expenses through her gross revenue, particularly if she was able to deduct some household expenses as legitimate business expenses.

95The father was cross-examined extensively on his past lifestyle with his previous girlfriend in 2008 and 2009. He was also cross-examined extensively regarding his income in 2010 and 2011. Much was made of the previous evidence of lifestyle and the failure to provide financial disclosure in the past. The father continued to state that his previous girlfriend provided substantial financial assistance, however, the father was free to appeal this issue, he did not, and the determination of his past lifestyle and expenses is res judicata.

96However the focus of this inquiry is on June 2013 forward. While evidence of past lifestyle income may have some relevance, the current evidence from June 2013 forward demonstrated a significant change in the father's circumstances, regardless of the previous determination of the father's income in 2006.

97Contrary to the mother's testimony and evidence, the father produced almost all of the documentary disclosure ordered by Justice Zisman. The mother was simply not prepared to accept the disclosure produced as being accurate. There was ample evidence to support the father's change in circumstances as a result of the workplace injury that he sustained in March 2013. There was further no evidence to support that the father is leading a luxurious or expensive lifestyle far beyond his means. Indeed, the evidence demonstrates that since 2013 the father and his wife expenses are approximately $47,000 per annum. The father testified that his income in 2013 was approximately $32,000, which was a combination of his WSIB benefits, his CPP disability benefits, his employment insurance benefits, some income from his employer prior to the work accident, and some modeling income. Given that his wife is also contributing towards the majority of the expenses, this corresponds with the father's evidence.

98Notwithstanding the volume in this documentary evidence, medical evidence and financial disclosure filed by the father, the mother was not prepared to accept the change in the father's circumstances. She continued to assert that the father and his current spouse were hiding income, fraudulently diverting assets and leading a luxurious and expensive lifestyle.

99There was no evidence to support these assertions. In reviewing all of the bank statements credit card statements and line of credit statements filed, there was no evidence of expensive vacations, luxurious trips, or an affluent lifestyle, but rather as modest lifestyle.

100The evidence supports that the father lives in a semi-detached home in Burlington. As the parties' son Aaron described it in his testimony "it is a regular middle-class house". The only evidence of any trips or vacations was one trip that Mr. Grant and his wife took to Europe, where they traveled to Romania for a period of approximately two weeks where they stayed with his wife's parents. His wife is Romanian.

101Much was made of the father's 2003 BMW. There is no doubt that the father leased a BMW in 2007 and then transferred the lease to his girlfriend at the time in 2008 during the previous court proceedings. There is also evidence and the father concedes that in 2009 he took back the lease owing on the BMW even if he claimed his girlfriend was making the monthly payments.

102The lease payments according to the father's financial statements were paid off in 2012. At that time, the father testified that the lease payments at that time were approximately $330 per month. According to the father's 2013 sworn financial statement, the BMW was worth approximately $7000. According to the 2015 sworn financial statement the father now deposes the BMW is worth $1500, although no certified appraisal was provided.

103The BMW is now 15 years old. The court finds this is the only car the father drives. The father's motion to change relates to adjusting the child support from July 1, 2013 onwards. The fact that the father was able to lease a BMW in 2008 was certainly relevant to previous courts. It is not relevant to the change in the father's financial circumstances since March 2013.

104It is apparent that the father's income now is largely derived from the CPP disability benefits and the long term disability payments that he received from his former employer. There is no doubt that the father is relying upon the financial assistance of his wife who is a medical aesthetician. She is self-employed and it appears she is the primary breadwinner in the family.

105Although the court is sympathetic to the mother's frustration over the years, the mother made some statements about the father that were simply not supported by the evidence. For example, she testified and in fact deposed in her affidavit that the father was not in compliance with any of the child support orders and had consistently defaulted on all of his child support payments. It is certainly true that until the final default order of Justice Pawagi, the father was in arrears of child support in the amount of $40,299.72, according to the Statement of Arrears filed by the Director of the Family Responsibility Office. These were very serious child support arrears and there is no question that in the past, the father's refusal to comply with child support orders or pay child was egregious.

106However, the evidence establishes that following the Final Default Order of Justice Pawagi, the father paid all of the arrears owing leading to a balance of zero as of July 1, 2013. In reviewing the Statement of Arrears prepared by the Director for the Family Responsibility Office, the court calculated that the father had paid well over $40,299.42 in child support arrears and ongoing child support to the mother between April 2009 and July of 2013 through the Family Responsibility Office.

107Thereafter, until the child support order was adjusted by Justice Zisman on October 7, 2013 arrears of approximately $3,000.00 accumulated under the previous order of Justice Kerrigan Brownwidge, which by that time did not accurately reflect the father's income based on the changes in his circumstances that I have found.

108The mother did not acknowledge this in her evidence or in her affidavit filed. She continued to insist that the father was in default of Justice Kerrigan Brownridge's and Justice Pawagi's Order.

109The father testified and the documentary evidence supports that he received significant loans from Mr. Neville Burger to pay the child support arrears. Mr. Burger's sworn affidavit in these proceedings confirms that he loaned the father money from his Scotia line personal line of credit which at the time had been paid off and was not being used regularly by him. He directed Scotia Bank to send the line of credit statements directly to the father's address so that the father would repay the line of credit directly after using it to pay the child support arrears.

110The father attached copies of the money orders withdrawn from the Scotia Bank line of credit in Mr. Burger's name paid to the order of the director of the family responsibility office towards the arrears owing. It is clear based on the documentary evidence reviewed that the arrears were paid from the Scotia Bank line of credit. It is also clear that the father is making the payments on Mr. Burger's line of credit every month. In cross-examination, the mother conceded that the bank drafts from the line of credit matched the payments made to FRO.

111The father's joint bank statements with his wife also demonstrate that the larger sums withdrawn from the joint account, the largest being approximately $2000 on somewhat irregular basis, corresponds again to the payments made to the Family Responsibility Office towards child support arrears on the same dates. The mother did not seriously challenge this of this evidence.

The Determination of the Father's Income for Child Support Purposes:

112Having found that the father has established a change in circumstances since the final 2006 Order of Justice Kerrigan-Brownridge, I must now embark on a fresh determination of the father's income for child support purposes.

113The purpose of the Child Support Guidelines is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency.

114Both parents have an absolute responsibility to support their children to the extent that they are able to do so. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children.

115Section 19. (1) (a) of the Guidelines provides that the court may impute such amount of income to a spouse as it considers appropriate in the circumstances if "the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse." [Emphasis added].

116A trial judge who chooses to attribute income arbitrarily and without explanation impute income commits an appealable error. A court must have evidence to lay a factual foundation in order to impute income to a payor. See: Drygala v. Pauli, 2002 CanLII 41868, 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R. (4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002 CarswellOnt 3228 (Ont. C.A.); Converti v. Escobedo, 2011 ONCJ 627, 210 A.C.W.S. (3d) 728, [2012] W.D.F.L. 3940, [2011] O.J. No. 5482, 2011 CarswellOnt 14615 (Ont. C.J.), per Justice Stanley B. Sherr.

117The Ontario Court of Appeal in Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (Ont. C.A.) set out the following three questions which should be answered by a court in considAarong a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

3. If not, what income is appropriately imputed?

118The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322 (CanLII), [2009] O.J. No. 1552. (Ont. C.A.).

119The court stated in Drygala, supra, that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable. "Intentionally" means a voluntary act. It does not apply to situations beyond one's control. See Tillmanns v. Tillmanns, 2014 ONSC 6733 (S.C.J.) at paragraph 18.

120Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, 2003 CanLII 3433 (Ont. C.A.), at paragraph 23. It must be reasoned, thoughtful and highly practical: See: Hagner v. Hawkins 2005 CanLII 43294 (ON SC), (Ont. S.C.) at paragraph 19. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137 (Canlii); DePace v. Michienzi, 2000 CanLII 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).

121Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that they will be unable to work for medical reasons. See: Cook v. Burton 2005 CanLII 1063 (ON SC), [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen 2006 CanLII 24124 (ON SC), [2006] O.J. No. 2902 (SCJ).

122Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.

123The third question in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson 2006 CanLII 26573 (O.C.A.).

124In considering all of these factors, including the father's own acknowledgment of his responsibility to pay child support, the court finds that it is appropriate to continue to impute income to the father. The father testified that he is currently on a medical leave of absence from his employer and that he expects to return to work on modified duties.

125The father gave no evidence as to when he would be returning to work and what those modified duties are going to be or should be. The father has an absolute responsibility to pay child support at the level he is capable of paying and the court agrees that there should be an income imputed to the father at a level of $30,000 per annum, whether he returns to work at Mercedes Benz or pursues further work in his previous areas of occupation.

Should there be a Retroactive Downward Variation of Child Support?

126The Ontario Court of Appeal recently set out the considerations for the court to apply when determining a retroactive downward variation of child support by a payor in Gray v. Rizzi, 2016 ONCA 152.

127The court set out that where a payor seeks a retroactive decrease in support, the D.B.S. factors 4 -- such as taking into account the circumstances of the child, the conduct of the payor parent, the hardship of a retroactive award, and the reason for delaying in seeking a variation in support -- remain relevant. Although those factors require some minor alteration to suit circumstances where the payor's income has gone down, not up, the fundamentals still apply.

128The court applied the process set out in Corcios v. Burgos, 2011 ONSC 3326 (Ont.SCJ) in paragraphs 56 to 59 as follows:

[56] First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, 2001 CanLII 8613 (ON CA), [2001] O.J. No. 4307 at para. 24. As Chappel J. stated, "Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated."

[57] Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor's circumstances that affected the payor's ability to make the child support payments when they came due.

[58] A payor's request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.

[59] Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. As Chappel J. stated: "[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly."

129In paragraph 60, the court stated that the following factors should guide a court in determining whether to grant retroactive relief, the date of retroactivity, and the quantum of relief:

1. The nature of the obligation to support, whether contractual, statutory or judicial;

2. The ongoing needs of the support recipient and the child;

3. Whether there is a reasonable excuse for the payor's delay in applying for relief;

4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;

(a) The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.:

"Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears";

(2.1) Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;

(a) Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.:

[I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.

130The court considered how the retroactive award should be calculated once it is decided that there should be an adjustment in paragraphs 61- 64 as follows:

[61] If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. Following D.B.S. , a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.

[62] Where a payor seeks a retroactive reduction in child support or rescission of arrears, effective notice requires the payor to provide "reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately." As put by Chappel J.:

A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor's circumstances has occurred.

[63] This obligation to disclose and negotiate with the recipient parent is ongoing, so that the recipient can assess and react to changes in the payor's financial situation. A payor's failure to comply with his continuing notice and financial disclosure obligations most likely will impact the remedy which the court crafts.

[64] Finally, "with respect to the quantum of any retroactive child support order, the Child Support Guidelines apply, provided that the date of retroactivity is not prior to the date when the Guidelines came into force, and subject to the principles set out in the statutory scheme under which the Court is operating."

131In my view in considering all of these principles, the father's motion to change the child support should be retroactive to July 1, 2013, which is the date that Kaitlin was no longer entitled to child support and three months after his workplace accident. The father brought his motion to change promptly after those two changes in circumstances, and his income was adjusted on a without prejudice basis shortly thereafter pursuant to the consent order of Justice Zisman dated October 7, 2013.

132Any arrears outstanding (which stood at approximately $3,000.00 at the time of the hearing) may be set off against any overpayment owed to the father. However, given the number of years that the father did not pay child support consistently, the fact that he did not contribute towards Kaitlin's post-secondary education expenses, and considering all of the factors in the determination of whether I should exercise my discretionary jurisdiction to reimburse the father for any overpayments made after 2013, the court declines to make any further order for reimbursement of overpayments of child support to the father. If there are arrears outstanding, they should be paid at the rate of $50.00 per month. See Meyer v. Content, 2014 ONSC 6001 (Ont. S.C.) at paragraph 100 where Justice Deborah Chappel summarized the factors a court should consider any considering a claim for reimbursement of overpayment of child support.

The Mother's Retroactive Claim for Kaitlin's Section 7 Expenses:

133The mother's retroactive claim for Kaitlin's post-secondary expenses dating back to the 2009 -2010 school year was first made by the mother in April of 2014 in her Response and cross-claim to the father's Motion to Change. The parties have agreed, according to the Agreed Statement of Facts filed in these proceedings that Kaitlin is no longer entitled to child support as of June 30, 2013 when she graduated from university and began working and pursuing her music career. It is therefore not disputed that Kaitlin was not in full-time attendance in a program of education at the time of the mother's claim for retroactive section 7 expenses.

134Section 31(1) of the Family Law Act in Ontario reads as follows:

"Every parent has an obligation to provide for his or her unmarried child who is a minor or is enrolled in a full time program of education to the extent that the parent is capable of doing so."

135In S. (D.B.) v. G. (S.R.), 2006 SCC 37 (CanLII), 31 R.F.L. (6th) 1 (S.C.C.) [D.B.S.], the Supreme Court of Canada clearly established that a claim for retroactive support could not be made unless the child was eligible for support at the time the application was made. See paragraphs of 88 and 89 of D.B.S. The D.B.S. rule has been applied in cases under the Family Law Act. For example, see Browning v. Browning, 2008 ONCJ 388 (CanLII), 57 R.F.L. (6th) 219 (Ont. C.J.) and Clancy v. Hansman, 2013 CarswellOnt 15957 (Ont. C.J.).

136Following the determination of this issue by the Supreme Court of Canada in D.B.S., in my view, the mother is barred from making this retroactive claim in 2013, almost five years after the claim arose and after the child was no longer entitled to child support.

137However, some cases have distinguished the "DBS" rule in cases where motions to change child support retroactively have been brought. In B. (P.M.) v. A. (A.R.C.), 2015 CarswellOnt 19453 (Ont. C.J.), Justice Stanley Sherr points to a number of cases in which the "DBS" rule has been distinguished in cases where motions to change support retroactively have been brought under the Family Law Act.

138In B. (P.M.) v. A. (A.R.C.), supra, Justice Sherr granted retroactive child support for a child who was no longer eligible for child support because two of the mother's three children were still eligible for child support, the mother brought the claim only four months after the child became ineligible for support, the parties had a clear agreement regarding support, and the father's conduct was egregious when considering all of the DBS factors and the parties' agreement over the four previous years, based on the father's disclosed income.

139In my view, even if this approach is correct in law, the mother's claim still fails for the following reasons, taking into account the DBS factors to be applied:

1. The mother's delay in pursuing the claim for section 7 expenses for approximately four years was unreasonable. The mother did not advance a reasonable excuse for the delay. There was also no evidence that the mother specifically requested contribution from the father. Indeed, the mother testified that Kaitlin's post-secondary expenses were paid for largely by an RESP and she did not actively pursue this claim until 2014, in response to the father's motion to change.

2. Having found that the father has established a change in his circumstances, and may have been in fact paying child support at a rate higher than he was actually earning at the time, the father's conduct was not entirely blameworthy, particularly since he did pay over $40,000.00 in child support arrears between 2009 and 2013 under the final order of Justice Kerrigan-Brownridge. However, the father's failure to make efforts to earn more income and his failure to inquire and to contribute towards his daughter's university education is blameworthy, as well as his refusal to pay child support consistently, if at all, during the early years of the parties' separation;

3. There was little evidence that the child experienced financial hardship. Her post-secondary expenses were paid by the education fund, and she described that her life was comfortable, as a result of her mother's hard work and support;

4. There is current evidence that the father will experience hardship if he is required to pay $18,000.00 towards Kaitlin's post-secondary education expenses.

The Mother's Claim for Aaron's Section 7 Expenses:

140Aaron is still entitled to child support and the father is obligated to contribute towards Aaron's post-secondary education expenses. Pursuant to section 7(2) of the child support guidelines, the guiding principle in determining the amount of an expense is at the expense is shared by the parents in proportion to their respective incomes after deducting from the expense, the contributions, if any, from the child. Further, in accordance with section 7 subsection 3 of the guidelines, the court must take into account any subsidies, benefits, or income tax deductions or credits relating to the expense and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

141There was some evidence in this trial that Aaron may receive the benefit of Métis status although the parents disagreed as to whether Aaron was entitled to claim this benefit.

142The parties will need to determine the father's proportional contribution towards Aaron section postsecondary expenses once the above determinations have been made unless they agree otherwise.

7. CONCLUSION AND ORDER:

143The final order regarding the father's motion to change is therefore as follows:

1. Commencing July 1, 2013, the father shall pay child support to the mother in the amount of $245.00 per month, and on the first day of each month thereafter. This is the Child Support Guidelines Table amount for one child, based on the father's imputed income of $30,000.00 per annum pursuant to the Child Support Guidelines. The Family Responsibility Office's record of arrears shall be adjusted accordingly. Any overpayment shall be set off against the arrears of approximately $3,000.00 owing. The mother shall not be required to reimburse the father for any further overpayment.

2. If the mother is seeking a contribution from the father for the child Aaron's post-secondary or other extraordinary expenses, then she shall shall provide the father with written proof of the anticipated cost and the father shall pay his proportionate share of the expenses, having considered Aaron's contribution and taking into consideration the analysis required under paragraph 136 above.

3. The parties shall exchange full financial disclosure by July 1st of each year, including but not limited to, personal income tax returns, scheduled and notices of assessment, a letter from their respective accountants setting out how the personal income has been calculated if necessary; if self-employed, their year-end financial statements for their sole proprietorships or corporations, including supporting documentation, their year-end statement of revenues, their complete corporate returns (if any).

4. If either party seeks costs, then he or she shall serve and file costs submissions, with a bill of costs and offers to settle attached, within 30 days. The other party may serve and file his or her written response to the submissions within 20 days.

144I thank counsel for their thorough preparation and professionalism these proceedings.

Released: June 27, 2016

Signed: "Justice Sheilagh O'Connell"