Tanhehco v. Cao, 2018 ONCJ 388

Court File and Parties

Court File No.: Toronto D47289/09 Date: 2018-05-31 Ontario Court of Justice

Between:

Lalaine Tanhehco Applicant (Responding Party)

— And —

Jin Cao Respondent (Moving Party)

Before: Justice Curtis

Heard on: 23 November and 1 December 2017

Reasons for Judgment released on: 31 May 2018

Counsel:

• Patricia Smyth, counsel for the Applicant
• Randall Montgomery, counsel for the Respondent

CURTIS, J.

INDEX

1. Over-view
2. Presentation of the Case
3. Background Facts
4. Litigation History
5. The Test on the Motion to Change
6. The Table Amount of Support
7. The Law Regarding the Father's Income
8. The Mother's Claims for Retroactive Support
9. Future Litigation
10. Orders
11. Conclusion
12. Costs

Over-view

1This is the decision in the father's motion to change. He is asking the court to change the final child support orders made 1 November 2011 and 1 June 2012. These orders provided (among other things; more details are provided below) for on-going support of $441 per month, and special and extra-ordinary expenses (section 7 expenses ("s. 7")) of $490 per month.

2The father started this motion to change on 9 February 2017 asking:

a) to reduce child support to $193 per month, to be based on income of $24,000 from 1 June 2016;

b) to reduce arrears of support to 0 as of 1 February 2017;

c) to reduce ongoing payments for s. 7 expenses to 0;

d) to reduce arrears of s. 7 expenses to 0;

e) to reduce s. 7 expenses ordered 1 June 2012 of $18,522 to 0;

f) an order that the mother provide proof of s. 7 expenses and proof of her income for 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015 and 2016, to calculate her share of the special expenses; and,

g) an order that he be credited with overpayments of child support in previous years.

3However, at the motion to change the father acknowledged that his position and his claims were different from those in his motion to change. At the motion to change he was seeking to:

a) reduce support retroactively from 2011 to be based on his income in line 150 of his income tax returns for those years;

b) reduce s. 7 expenses to 0 retroactively from the date of the original order;

c) pay only certain s. 7 expenses (which are itemized below) on an on-going basis.

4The mother's response, filed on 15 March 2017, asked:

a) to dismiss the father's motion to change, as he has not met the onus of change in circumstances, because his income has not gone down as he claims; and,

b) to adjust child support to be based on imputed income, for the Child Support Guidelines table amount, for s. 7 expenses, and for retroactive child support from 2011.

5At the motion to change the mother was seeking:

a) to dismiss the father's request to reduce support;

b) to adjust the table amount of support based on imputing income to the father of these amounts in these years:

Year	Proposed Imputed Income
2011	$60,000
2012	$60,000
2013	$60,000
2014	$50,000
2015	$125,000
2016	$125,000
2017	$80,000

c) to fix arrears of child support at $40,000 as of 1 December 2017;

d) on-going s. 7 expenses from 1 December 2017 of $275 per month, until 1 October 2019, then on-going s. 7 expenses of $200 per month; and,

e) a lump sum payment towards the s. 7 expense of orthodontic of $2,450.

6The issues for decision are these:

a) has there been a change in circumstances since the orders were made that warrants changing the existing order?

b) what is the proper income of the father for child support purposes, on an annual basis?

c) should there be a retroactive adjustment of the child support table amount in accordance with the father's income, and if so, what is the proper start date?

d) should there be a retroactive adjustment of child support for special expenses in accordance with the father's income and the special expenses incurred, and if so, for which expenses, and what is the proper start date?

Presentation of the Case

7The case was a motion to change and was argued as a motion. The parents were given multiple opportunities to file additional material before the case was heard, and both sides did. There was extensive material filed by the parties. The father filed five affidavits, two financial statements, a financial disclosure brief, a factum, and a book of authorities. The mother filed four affidavits, a financial statement, a financial disclosure brief, a factum and a book of authorities. Neither parent asked that there be a trial of these issues. Neither parent asked to cross-examine on the material filed.

Background Facts

8The Respondent (the moving party) is the father, Jin Cai Cao, ("the father") 34 years old (born 7 July 1983).

9The Applicant (the responding party to the motion) is the mother, Lalaine Tanhehco ("the mother") 38 years old (born 8 October 1979).

10The parents were not married to each other, and never lived together. There is one child of their relationship, Summer, now 12 years old (born 3 October 2005).

Litigation History

11There is a lengthy and extensive litigation history. The original application, started in 2009, concluded with several final orders. The orders that are the subject of this motion to change are these:

a) final orders made 1 November 2011 for:

i. child support $441 per month on annual income of $47,727 (for 2010) from 1 January 2010;

ii. arrears of support to be paid at $250 per month from 1 December 2011;

iii. annual financial disclosure; and,

iv. s. 7 expenses (both on-going and retroactive) to be dealt with on better evidence from the mother;

b) final orders made 1 June 2012 for:

i. retroactive s. 7 expenses for 2008, 2009, 2010 and 2011 up to 1 November 2011 in the total amount of $18,522;

ii. one-time medical/dental expense of $202.10;

iii. on-going s. 7 expense of $490 per month from 1 December 2011, based on father's pro-rata share of 70%;

iv. if any payments for table amounts or s. 7 expenses is not paid in full, the arrears are then due and owing;

v. costs to mother fixed at $130 to be enforced as support; and,

vi. father shall not bring a motion to change without permission obtained in advance with a Form 14B, which does not have to be served on the mother unless the court orders.

12The result of these two final orders regarding child support is the following:

a) monthly payments as follows:

i. child support table amount of $441 per month on income of $47,727 from 1 January 2010;

ii. s. 7 expense $490 per month from 1 December 2011;

iii. arrears of support to be paid at $250 per month from 1 December 2011; and,

iv. if any payments for table amounts or s. 7 expenses is not paid in full, the arrears are then due and owing;

b) lump sum amounts owing as follows:

i. retroactive s. 7 expenses up to 1 November 2011 in the total amount of $18,522;

ii. one-time medical/dental expense of $202.10; and,

iii. costs to mother fixed at $130 to be enforced as support.

13Both of the issued and entered orders for 1 November 2011 and 1 June 2012 contain significant errors and do not accurately reflect the endorsements made:

a) the order of 1 November 2011 shows that it was a consent order and that both parents were present at court that day and both assisted by duty counsel. The actual endorsement shows different: there was no consent. The father was paged at both 11.10 a.m. and 3.20 p.m. and was not present; and,

b) the order of 1 June 2012 shows that the father was not present. He was present and assisted by duty counsel that day. He left the courtroom before the final orders were made.

These orders need to be re-issued to properly show the terms of the endorsement.

14In the original application, although there had been many years of litigation and the parents had filed a great deal of material, the father was not present at court on 1 November 2011 when the final child support order (for the table amount) was made, and he did not remain at court when the final order for s. 7 expenses was made on 1 June 2012.

15There was an enforcement case in Newmarket Superior Court (Family Court) and at this courthouse regarding the support order. These are the temporary default orders that were made:

a) on 24 September 2015 the Newmarket court ordered, without prejudice, that:

i. the father shall pay $400 per month from 1 October 2015; and,

ii. in default of payments he should be incarcerated 3 days in jail for each default; and,

iii. the costs orders of $130 made 5 March 2012 and $130 made 1 June 2012 have both been paid;

b) on 8 December 2016, this court ordered that:

i. the father shall pay $441 per month regarding the on-going order;

ii. the father shall pay $200 per month towards arrears;

iii. in default of payments he should be incarcerated 3 days in jail for each default; and,

iv. the costs orders of $130 made 5 March 2012 and $130 made 1 June 2012 have both been paid.

16The default case at this courthouse is still continuing.

17As of the second order in the default case (made 8 December 2016), the monthly support obligation was the following:

a) child support table amount of $441 per month;

b) s. 7 expense $490 per month from 1 December 2011;

c) arrears of support to be paid at $250 per month (from the original order 1 November 2011);

d) arrears of support at $200 per month (from default order 8 December 2016);

The jail term of 3 days in jail for each missed payment attached only to the payments of $441 per month for on-going support and $200 per month towards arrears.

The Test on the Motion to Change

18The father's motion to change the child support terms of the orders made 1 November 2011 and 1 June 2012 was bought under s. 37(1) and (2.1) of the Family Law Act, and s. 14 of the Child Support Guidelines:

Application for variation

37. (1) An application to the court for variation of an order made or confirmed under this Part may be made by,

a) a dependant or respondent named in the order;

b) a parent of a dependant referred to in clause (a);

c) the personal representative of a respondent referred to in clause (a); or

d) an agency referred to in subsection 33 (3). 1997, c. 20, s. 6.

Powers of court: child support

(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.

Variation of Orders for the Support of a Child

Circumstances for variation

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:

a. 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.

b. 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.

c. 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).

d. 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.

19Sections 37(2.2) to 37(2.6) of the Family Law Act and the Child Support Guidelines provide the framework within which the court is to undertake the calculation of child support in a variation proceeding. The object of the child support provisions set out in the Act and the Guidelines is to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient.

20Both s. 37(2) and (2.1) of the F.L.A. give a court jurisdiction to "discharge, vary or suspend" the support "prospectively or retroactively". This gives the court jurisdiction to vary a child or spousal support order retroactively.

21The powers of the court on a motion to vary a child support order are very broad. The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis. The court's authority with respect to arrears is similarly broad, and includes the power to rescind the arrears and interest, either entirely or in part, or to reduce the amount of arrears payable. The powers of the court in a variation proceeding also include the power to order appropriate set-offs.

22As set out in section 37(2.1) of the Family Law Act, a threshold issue that must be addressed in a motion to change child support is whether there has been a change in circumstances within the meaning of Guidelines since the order was made, or whether evidence that was not available at the hearing respecting the order has now become available. Section 14.1 of the Guidelines provides that where the amount of child support set out in the order includes a determination made in accordance with the Tables under the Guidelines, any change in circumstances that would result in a different order for the support of the child constitutes a change that gives rise to the making of a variation order. Accordingly, a change in the payor's income or evidence that the child is no longer entitled to child support under the Family Law Act would satisfy the threshold test of whether there has been a change in circumstances since the previous order was made.

23In a motion to change the onus is on the moving party (here, the father), to prove his case, and to show that there has been a change in circumstances.

24Essentially both parents say there has been a change in circumstances. The father says that the change is the fact that he is earning less money now than when the orders were made in 2011 and 2012, and that he has not received proof of the s. 7 expenses ordered then. The mother says that the change is that the father earned more income than he disclosed when the original order was made, that he earns more income now, and that the child has incurred additional s. 7 expenses since the orders were made in 2011 and 2012.

The Table Amount of Support

The Law Regarding the Father's Income

Imputing Income

25These are the child support issues in this case:

a) what is the father's income for child support purposes, that is, not what is he earning, but rather, whether there should be income imputed to him for the purposes of child support? and,

b) if there are to be changes to the child support, what is the proper start date for these changes?

26The 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.

27Section 19(1) of the Child Support Guidelines addresses imputing income:

19.(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse;

28Section 1 of the Guidelines stipulates that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. The need to ensure appropriate financial support for the children is dealt with by imputing income. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he is capable of earning.

29There is a duty to seek employment in a case where a parent is healthy.

30The payor is intentionally under-employed if that parent chooses to earn less than he is capable of earning. That parent is intentionally unemployed when he chooses not to work when capable of earning an income.

31Section 19(1)(a) of the Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed. When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity.

32A parent cannot pursue an improvident career path at the expense of the child.

33A parent cannot avoid child support obligations by a self-induced reduction of income.

34The court has a broad discretion to impute income where the father is not working to his potential. In exercising discretion, a court will bear in mind the objectives of the guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. The fundamental principle is that the court must estimate the actual means which the parent has available for child support.

35In Duffy v. Duffy, the Newfoundland and Labrador Court of Appeal set out a list of general principles to be considered regarding child support and when determining whether to impute income:

a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices;

b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children;

c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent;

d) Imputing income to a parent on the basis that the parent is "intentionally under-employed or unemployed" does not incorporate a requirement for proof of bad faith. "Intentionally" in this context clarifies that the provision does not apply to situations beyond the parent's control;

e) The determination to impute income is discretionary, as the court considers appropriate in the circumstances;

f) Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision;

g) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action; and,

h) A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.

36The support recipient bears the burden of proving that the support payor is intentionally under-employed. If the court is not satisfied that the support payor is intentionally under-employed, the inquiry ends there. Once you establish underemployment, the onus shifts to the payor to show one of the exceptions of reasonableness. Parents can take jobs with less money, as long as the decision is reasonable. The onus of proving the payor is intentionally underemployed is on the recipient. If proved, the onus then shifts to the payor to establish an acceptable reason. Intentional underemployment requires a voluntary act by the respondent.

37There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.

38A spouse is not to be excused from his child support obligations in furtherance of unrealistic or unproductive career aspiration.

39The determination to impute income is discretionary, as the court considers appropriate in the circumstances.

40As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. The court finds that the father is either not reporting (to the court) all of the income and the actual income he is earning, or that he is under-employed. If the court determines that the father is under-employed, the next step is to determine what the father is capable of earning.

41Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

42When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent, the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands, and the hourly rate that the parent could reasonably be expected to obtain.

43In determining a party's capacity to earn income, the principles which the court should consider include the following:

a) There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children;

b) The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments;

c) If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations;

d) When a parent experiences a sudden change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities in order to satisfy their obligation to contribute to the support of their children;

e) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them;

f) The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute; and,

g) A parent who decides to stay at home to care for subsequent children, or to work in the home at a reduced rate so that they can continue to care for the children, may be imputed a reasonable income in the absence of evidence to support a finding that the parent's underemployment is required by the needs of the subsequent children within the meaning of section 19(1)(a) of the Guidelines.

44Lifestyle can provide the criteria for imputing income.

45Lifestyle is not income, but rather evidence from which an inference may be drawn that the payor has undisclosed income that may be imputed for the purpose of determining child support.

46The burden of proof is on the payor to satisfy the court on a balance of probabilities the amount of income upon which child support should be based. Where this information is lacking or is insufficient, the court may need to rely on other information.

47The court will usually draw an adverse inference against a party for his failure to comply with the disclosure obligations (as provided for in the Family Law Rules, the Family Law Act, and the Child Support Guidelines), and impute income.

Determining the Father's Income for Child Support Purposes

48The mother's position is that the father is understating his income or is hiding income. She claims that he owns property he is not disclosing, and that he has been working on construction secretly. She claims that his lifestyle and property purchases suggest that he has other undisclosed income.

49The father's position is that he earns approximately $2,000 per month, that he is not hiding income, that he owns no hidden properties, and that he has never worked in construction or any line of work. His position is that child support should be based on the amounts shown as line 150 income in his income tax returns over the years, as follows:

Year	Line 150 Income
2006	$13,714
2007	$26,123
2008	$30,802
2009	$38,804
2010	$47,727
2011	$47,049
2012	$33,763
2013	$36,774
2014	$31,683
2015	$30,820
2016	$28,659
2017	$28,659

50If support were to be retroactively adjusted in accordance with the numbers the father relies on, both the table amount and the amount for s. 7 expenses would be adjusted. He believes that he has overpaid support during the years 2012 to 2017 in the amount of $30,044.80.

The Father's Income

51It was very difficult to follow the father's evidence about his assets and his income. The evidence was at times incomplete, and inconsistent, and at other times, openly misleading. The documents produced were not organized and some were incomplete. The onus to prove his income and assets are what he says they are is on the father. It is not the responsibility of the court to sort through his material in order to find the evidence which supports or proves his position.

52It is difficult to determine what the father's actual income was over the years. Part of this is due to the inadequate disclosure made by him. Part is due to the nature of the disclosure made. He acknowledged that it was difficult to determine his income, and admitted that he did not know what his income was. His lawyer conceded that the father's finances were a mess, that the lawyer did not understand them and that the father did not understand them.

53In a case about child support, the father's obligations under the Family Law Act, the Family Law Rules and the Child Support Guidelines are clear and specific. He is obliged to produce evidence about his personal income for the years in question. He provided financial disclosure that was incomplete and confusing, from which information it was not possible to determine his personal income. The information produced does not come close to meeting the disclosure requirements.

The Evidence

54The father worked as a tire installer at Costco from May 2006 until September 2014. He was a valued employee at Costco, who had achieved seniority. Information from the Costco Employee Handbook showed that an individual with his years of experience, working a 40 hour week, could earn $52,000 annually, with benefits. He did not dispute this evidence.

55The father quit this job in September 2014, and stopped making child support payments in October 2014. He did not make any further payments until ordered to do so in the default case, on 24 September 2015, when a jail term was attached for failure to make payments. The father was also taking a full-time course at Stanford International College of Business and Technology.

56The father says he does not own real estate, yet he lives in a large property in Markham registered in his name, with no mortgage (as of 31 July 2017), a home which may be worth as much as $1,000,000. One of financial statement shows no property, and the second financial statement shows the Markham property.

57The father is now self-employed. In 2015, he started his own business, with a partner (incorporated in 2016), J's Air Solution, which does heating and air conditioning work. While his evidence was that he is a 50% owner of the business, his 2015 and 2016 income tax returns show his ownership interest at 45%. No explanation was offered for this discrepancy.

58The father operates his business at his home. As a result, he is not paying rent, utility, internet or phone charges for his business (or in the alternative, deducts all or a portion of these expenses and does not pay them for his personal use). He says that he does not keep records for his small business, and that no monthly or quarterly financial statements are kept. He says that he splits the net income from the business with his partner equally. He produced no evidence to support either the claim that he is a joint owner, or the claim that he splits the net income with a partner.

59The father shows no debts on his financial statement.

60The father bought a home in Markham in 2011 (two-storey, semi-detached, three bedrooms, three washrooms) and currently owns this home. This home is fully paid for, and is shown on his financial statement sworn 31 October 2017. He paid off the entire amount of the mortgage of $390,000, on 13 October 2011, 35 days after buying the home. He paid off this large sum at a time when he was in the middle of the original application for support in court. He did not disclose that he owned a home in the original court case. When he bought this house he told the court that he was earning an annual income of $47,000. When he paid off this large sum, he was not complying with a support order. The mother asked for production of the mortgage application for this sum (as he says he borrowed this sum from the bank), and he did not produce it.

61For most of the time during the motion to change, the father denied owning any real estate. But he said that his name was put on his parents' property as owner in 2011, because his parents could not refinance without him and so that he could assist in paying off the mortgage. He says he also paid property taxes in 2012 and subsequent years. While he states in evidence that he was a registered owner of his parents' property, the mother did a title search on that property (which she produced) and it is owned solely by his parents.

62At the time this large sum was paid to discharge the mortgage, the father had declared the following amounts as income for income tax purposes (in the years preceding this payment):

Year	Line 150 Income
2006	$13,714
2007	$26,123
2008	$30,802
2009	$38,804
2010	$47,727
2011	$47,049

63The father made no explanation of how he was able to purchase a home, and pay off the mortgage in full of $390,000 only 35 days after the purchase. It is unclear where the $390,000 to pay off the mortgage came from. He made no explanation of how he was able to borrow the sum of $390,000 on income of $47,000.

64The father has $34,000 in an RRSP which was not disclosed on any of the financial statements filed in the motion to change. The father made no explanation as to how he was able to accumulate over $34,000 in an RRSP, particularly at a time when he was not paying child support.

65In the same sentence in his affidavit evidence (filed in this motion to change, sworn 17 July 2017) the father states that he:

"denies owning any property now or buying any properties in the past. My parents refinanced their house in 2011 and because they have limited earnings since they are both retired, my name was put on the house so I could assist in paying off the mortgage. I never purchased property in 2011 or any subsequent year. . . . . (he) does not have any property tax receipts in my name since I don't own any property".

66The father clearly does not understands what "owning property" means. At this time (July 2017) he owned a house in Markham. He says he does not own real estate, yet he lives in a large property in Markham registered in his name, with no mortgage (as of 31 July 2017), a home which may be worth as much as $1,000,000.

67The father did not disclose that he owned this house in September 2015, during the default case in Newmarket, when he asked the court to make a temporary default order for less than the on-going support payments.

68On the father's financial statement he says he is paying a mortgage of $1,585 per month (and his bank statements show a payment of $1,195 per month), yet there is no mortgage on the home he owns in Markham (as of 31 July 2017).

69In the father's affidavit of 25 May 2017 he says that he does not own a car, but a car is shown on his financial statement sworn 31 October 2017, and his bank statements show car payments and car insurance payments. In addition, in one three month period, he shows he has paid over $3,000 for car expenses.

70Notwithstanding the father's position is that he owns no hidden properties, his lawyer conceded in submissions that the father indeed owned a home, and that he had "sworn false financial statements".

71The father's bank statements show he is making credit card payments of on average of $1,531 per month (from May 2017 to October 2017).

72The father had at least three legal obligations to make full and frank disclosure, as follows, and did not do so:

a) the final order on 1 November 2011 contained a clause requiring annual financial disclosure;

b) as the moving party in the motion to change the father had disclosure obligations under the Family Law Act, the Family Law Rules and the Child Support Guidelines; and,

c) there was an order for disclosure in the motion to change made 18 July 2017.

73The evidence produced by the father about his bank accounts was incomplete and inconsistent with other evidence. These are two such examples:

a) in 2015 the disclosure showed deposits of $145,665 for the period 29 June 2015 to 31 Dec. 2015, but no information was provided for the rest of the year (almost six months). That deposit history would result in annualized deposits of $291,330 for 2015. And notwithstanding the deposits of $145,665 for that period, the Statement of Business Activities filed with his 2015 income tax return shows a gross business income of only $128,907, for the entire year (that is, he declared to Revenue Canada that he earned less income for the entire year than the sum he deposited into his bank accounts over six months that year); and,

b) in 2016 there were deposits of $83,620 for the period 1 January to 30 April 2016. In April 2016 alone there were deposits of $23,560. That deposit history would result in annualized deposits of $250,860 for 2016. And notwithstanding the deposits of $83,620 for that period, the Statement of Business Activities filed with his 2016 income tax return shows a gross business income of only $52,274, for the entire year (that is, he declared to Revenue Canada that he earned less income for the entire year than the sum he deposited into his bank accounts over six months that year).

74It is not believable that the father would make no income from January to June 2015, and then be able to deposit $145,000 to his bank accounts from June to December 2015. The father has provided no explanation for this.

75In 2015, if the court accepted that the father actually incurred and paid all the expenses that he shows as deductions on his Statement of Business Expenses, his gross income would be over $200,000. In 2016, if the court accepted that he actually incurred and paid all the expenses that he shows as deductions on his Statement of Business Expenses, his gross income would be $84,232.

76The father says that he is not working anywhere else other than Costco (while he was there) and for his own business after that. However, the mother's evidence was that she has seen him working elsewhere (e.g., at Canadian Tire, etc.), in 2012, 2013 and 2015. While saying that he does not work elsewhere, the father admits in his affidavit that he does do some work on a cash basis.

Analysis

77The court makes these findings about the father:

a) the father has failed to provide full and complete income information when under a legal obligation to do so;

b) he has not proven that he is earning less money than he did when the original orders were made;

c) the onus is on the party asking to change the court order to provide a complete financial picture, which he has not. An adverse inference should be drawn against him;

d) his non-compliance with the disclosure order in the motion to change is fundamental and significant. He continued to provide some but not all disclosure needed in this court case that he started, as he has in the past, in the original application, and in the default case;

e) he has repeatedly and intentionally avoided his responsibility towards his child over a great many years. He has demonstrated a long-term, wilful and deliberate disregard for his obligation to comply with court orders;

f) he has undisclosed sources of income;

g) the court can and should draw adverse inferences regarding his income and his assets, based on his lack of disclosure, and his long-standing pattern of failing to disclose and misleading the court;

h) he provided no justifiable reason for his inadequate payment history;

i) he has not shown reasonable, diligent or legitimate efforts to comply with the court order;

j) he has not acted in good faith, and has a long history of not complying with court orders for disclosure;

k) he has misled the court and the mother about his financial affairs;

l) he openly and intentionally lied to the court and to the mother about his assets, and his income, and without apology or explanation. He says he does not own real estate, yet he lives in a large property in Markham registered in his name, with no mortgage (as of 31 July 2017), which may be worth as much as $1,000,000;

m) he did not disclose an RRSP worth more than $34,000 on his sworn financial statements;

n) he has no plan on how to meet his ongoing support obligation in the future nor to retire the existing arrears;

o) he is not an inexperienced litigant, lacking in understanding of the court process or of the possible consequences not paying support orders. He has been involved in litigation with the mother since 2009;

p) he says that he earns nominal income, but still appears to have his needs met; and,

q) he has no credibility and the court cannot rely on any aspect of his evidence.

78It is difficult to determine an appropriate amount of income to impute to the father. Part of the reason for this is his lack of disclosure. Another reason for this is his complete lack of credibility. But a payor cannot fail to comply with the rules about disclosure and then benefit from his behaviour. The onus was on him to produce adequate disclosure about his income. He failed to do so. He has hidden his income and has misled the mother and the court about his income over the years. The court will draw an adverse inference regarding his failure to make disclosure and his income. The court will impute income to him for the years in question, based on the evidence that was available.

79It is not believable that the father earned such low levels of income as he asserts, for the years in question. An appropriate level of income to impute to the father for the years from 2012 onwards, given the evidence provided, the lack of disclosure, the inconsistencies in his evidence, the fact that he admits to lying under oath to the court, his lack of debts, his lifestyle and his assets, is $60,000. This is the number proposed by the mother, and it is supported by a review of the entire evidence and it is reasonable.

The Mother's Claims for Retroactive Support

80The mother's claims for a retroactive adjustment of the table amount and the s. 7 expenses need to be addressed separately.

What is the Proper Start Date for Adjusting Child Support?

81Retroactive child support (both the table amount and s. 7 expenses) must be considered in the framework of the principles set out by the Supreme Court of Canada in the D.B.S. decisions.

82The umbrella determination in the D.B.S. cases is this: courts have the jurisdiction to award retroactive child support, and, in appropriate cases they should do so.

83These are the framework principles set out in the D.B.S. decisions:

a) the obligation of support arises automatically upon birth;

b) child support is the right of the child;

c) the term "retroactive" is misleading in the technical sense, as these "retroactive" awards do not hold parents to a legal standard that did not exist at the relevant time;

d) a retroactive child support order does not involve imposing an obligation on a payor parent that did not exist at the time for which support is being claimed;

e) the specific amounts of child support owed will vary based upon the income of the payor parent;

f) as income levels increase or decrease so will the parents' contributions to the needs of the children, just as they would if the family had remained together;

g) under the general Guidelines regime, the underlying theory is that the support obligation itself should fluctuate with the payor parent's income;

h) under the general Guidelines regime, when a payor parent does not increase the amount of his support when his income increases, it is the child who loses: the child is the one who is entitled to a greater quantum of support in absolute terms;

i) the ultimate goal must be to ensure that children benefit from the support they are owed at the time when they are owed it. Any incentives for payor parents to be deficient in meeting their obligations should be eliminated;

j) it is clear that retroactive awards cannot simply be regarded as exceptional orders to be made in exceptional circumstances;

k) where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility; and,

l) courts must be open to ordering retroactive support where fairness to children dictates it, but should also be mindful of the certainty that fairness to payor parents often demands. It is only after a detailed examination of the facts in a particular case that the appropriateness of a retroactive award can be evaluated.

84In the D.B.S. cases, the Supreme Court of Canada sets out a process for courts to follow when considering and deciding issues of retroactivity:

a) What is the legal status of the support obligation?

i. court order;

ii. agreement; or,

iii. no order or agreement.

b) Are there any legal excuses/exemptions that apply (the factors to be considered)?

i. the child's age;

ii. delay;

iii. blameworthy conduct;

iv. hardship to the child; or,

v. hardship to the payor.

c) What is the proper retroactive amount to be ordered?

i. commencement date; and,

ii. amount to be ordered.

85While the payor parent does not shoulder the burden of automatically adjusting payments, or automatically disclosing income increases, this does not mean that he will satisfy his child support obligation by doing nothing. If his income rises and the amount of child support paid does not, there will remain an unfulfilled obligation that could later merit enforcement by a court. This means that a parent will not have fulfilled his obligation to his children if he does not increase child support payments when his income increases significantly.

86The certainty offered by an order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support.

87Parents should not have the impression that child support orders are set in stone. Even where an order does not provide for automatic disclosure, variation or review, parents must understand that it is based upon a specific snapshot of circumstances which existed at the time the order was made. For this reason, there is always the possibility that the order may be varied when these underlying circumstances change.

88An increase in income that would alter the amount payable by a payor parent is also a material change in circumstances.

89In a situation where the payor parent is found to be deficient in his support obligation to his children, it will be open for a court to vary an existing order retroactively. The consequence will be that amounts that should have been paid earlier will become immediately enforceable.

90When applying the 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.

91The factors set out in D.B.S. are a guide. None of them are intended to be paramount or decisive. Ultimately, the Supreme Court stated courts should take a holistic approach to determining both quantum of retroactive support and terms of payment. Each case must be decided on the basis of its particular facts.

What Is the Legal Status of the Support Obligation?

92The support obligation in this motion to change is a court order (in this case, two court orders).

Are There any Legal Excuses/Exemptions that Apply (the Factors To Be Considered)?

Was there Delay by the Recipient?

93The recipient is not the original moving party in this case. While she made claims in response to the father's motion to change, the father is the primary moving party.

94Delay in seeking an increase in child support is a factor in determining whether a retroactive award is justified.

95The court shall consider whether there is a reasonable excuse for the delay in applying for relief. 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.

96The mother did not come back to court to ask for more support earlier as she did not know the father had additional income and assets. He did not comply with the order for annual financial disclosure in the original support order. He did not even fully disclose his financial situation at the time of the original order. She cannot be faulted for delay when she did not have the necessary information to return to court.

Blameworthy Conduct: Legal Considerations

97The payor parent's interest in certainty is least compelling where he engaged in blameworthy conduct.

98Courts should take an expansive view of what constitutes blameworthy conduct in this context.

99Blameworthy conduct is anything that privileges the payor parent's own interests over his children's right to an appropriate amount of support.

100A payor parent should not be permitted to profit from his wrongdoing.

101A payor parent cannot hide his income increases from the recipient parent in the hopes of avoiding larger child support payments.

102No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his obligations, he might still be acting in a blameworthy manner if he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his support obligation to his children should not be allowed to profit from such conduct.

103Whether a payor parent is engaging in blameworthy conduct is a subjective question.

104Hardship for the payor parent is much less of a concern where it is the product of his own blameworthy conduct.

105Another conduct issue addressed by the cases is the failure to pay the support which was originally ordered.

106In D.B.S., the Supreme Court of Canada emphasized the importance of eliminating incentives for payor parents to avoid their child support obligations, and ensuring that children receive the support which they are entitled to in a timely manner.

This Father's Blameworthy Conduct

107The father engaged in blameworthy conduct right from the time that the orders were made in 2011 and 2012, and he has continued to engage in blameworthy conduct throughout the period from then to the present.

108Following are examples of the father's blameworthy conduct:

a) he did not disclose that he owned a house in the original application;

b) he did not make regular support payments under the orders of 2011 and 2012;

c) he did not provide annual financial disclosure as ordered on 1 November 2011;

d) he did not disclose any increases in his income;

e) he did not make regular support payments under the orders made in the default case in 2015 and 2016;

f) he did not comply with the financial disclosure order made in the motion to change; and,

g) he has repeatedly been openly dishonest with the court, he has intentionally misled the court, has lied in sworn documents, and has failed to disclose income and assets, as required and as ordered.

109The lack of disclosure and the level of the father's non-disclosure, in a situation like this, are particularly egregious. He cannot be allowed to benefit from this intentional act of not making the disclosure he is obliged to do by court order, and by law.

Hardship in the Circumstances of the Child

110Courts should consider the present circumstances of the child -- as well as the past circumstances of the child -- in deciding whether a retroactive award is justified.

111The mother and the child live in a 400 square foot, single room, basement. She does not own real estate or a car. She earns a modest income ($24,000 to $26,000 annually). The mother has a disability (which was unspecified). The child requires orthodontics and physiotherapy. She is enrolled for summer camp and self defense programs. The child's lifestyle has been significantly diminished and limited due to the father's failure to pay support.

Hardship to the Payor

112The father did not plead hardship and did not argue hardship.

113While hardship is certainly one of the factors to be considered pursuant to D.B.S., the weight to be given to this factor is greatly diminished by blameworthy conduct on the part of the payor parent.

114Any hardship can be addressed by a repayment schedule.

What is the Proper Retroactive Amount to Be Ordered? And from What Start Date?

Start Date of the Order

115The court in D.B.S. identified four choices for the date to which the award should be retroactive:

a) the date when an application was made to a court;

b) the date when formal notice was given to the payor parent;

c) the date when effective notice was given to the payor parent; or,

d) the date when the amount of child support should have increased.

116The court adopted the date of effective notice as a general rule for the commencement date of retroactive support awards.

117"Effective notice" means any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his interest in certainty becomes less compelling.

118Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changed materially (that is, the date when the amount of child support should have increased) will be the presumptive start date of the award.

119The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that he reasonably believed his child's support entitlement was being met.

120The presence of blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his informational advantage to justify his deficient child support payments.

121The father's conduct regarding his support obligation to his child, over a long period of time, is egregious. He knew he had an obligation to support his child. He did not disclose his purchase of a house, or changes in his income. He lied to the court. He had the means to pay an increased amount of support and to contribute to the s. 7 expenses and he refused to do so. He benefitted financially over a period of many years from this conduct. He knew what he was doing. This is blameworthy conduct.

The Fairness Umbrella Regarding Retroactive Child Support

122In the D.B.S. cases, the Supreme Court of Canada inserted a new test in child support cases, that is, an umbrella test of "fairness", into this analysis. The court repeatedly refers to the "balance between certainty and flexibility" in this area of the law, describing it as fairness to children and certainty for the payor.

123The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for any delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.

124These determinations involve a balancing of interests: the payor's right to know with some certainty what his obligations are, and the child's right to be supported at the appropriate level. It is only after a detailed examination of the facts in a particular case that the appropriateness of a retroactive award can be evaluated. The payor has the advantage, of course, as the payor is often the only one in the equation (payor, recipient, and child) in possession of the information about his income and what the appropriate amount of support should be at any given time. Courts must be open to ordering retroactive support where fairness to children dictates it.

125This requires the judge to examine all the factors and weigh those factors, keeping in mind the need to balance these interests. No matter what order is made, one parent will be disadvantaged.

126The question of retroactive child support awards is a challenging one because it only arises when at least one parent has paid insufficient attention to the payments the child was owed. Courts must strive to resolve such situations in the fairest way possible, with utmost sensitivity to the situation at hand. But there is unfortunately little that can be done to remedy the fact that the child in question did not receive the support payments he was due at the time when he was entitled to them.

127A delinquent payor cannot use the principle of predictability as a shield against paying the full amount of support to which his child is entitled.

128The Supreme Court of Canada cannot have meant that the court should reward a father who fails to make payments and fails to disclose his employment and his income information by refusing to retroactively vary the order. Such an interpretation would encourage payors to not comply with the court order, as there would be no adverse consequences for them.

129On an overall fairness analysis of all the circumstances in this case, it is fair, just and appropriate that there be an order for a retroactive adjustment of child support in this case, particularly as there is information available that was not available when the original orders were made in 2011 and 2012, and as the father has openly misled the court. The table amount should be adjusted from the date of the original order, 1 November 2011.

Retroactive Child Support and s. 7 Expenses

130The principles set out in the D.B.S. cases regarding retroactive child support apply to the table amount and to s. 7 expenses. The court in the D.B.S. cases makes no distinction regarding retroactive child support between the table amount of child support and s. 7 expenses for child support.

The s. 7 Special Expenses and Child Support

131The mother's claim for special expenses and retroactive special expenses is brought under s. 7 of the Child Support Guidelines:

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

b) that portion of the medical and dental insurance premiums attributable to the child;

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

e) expenses for post-secondary education; and

f) extraordinary expenses for extracurricular activities. O. Reg. 391/97, s. 7 (1) ; O. Reg. 446/01, s. 2.

Definition"extraordinary expenses"

(1.1) For the purposes of clauses (1) (d) and (f)"extraordinary expenses" means

a. expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

b. where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

1. the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

2. the nature and number of the educational programs and extracurricular activities,

3. any special needs and talents of the child,

4. the overall cost of the programs and activities, and

5. any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. O. Reg. 391/97, s. 7 (2) .

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), 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. O. Reg. 159/07, s. 2.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. O. Reg. 159/07, s. 2.

132The list of special and extraordinary expenses under s. 7(1)(a) to (f) is exhaustive; if a claim doesn't fall within any of the listed categories, it must be dismissed.

133All special expenses must meet the tests of necessity and reasonableness set out in s. 7(1) of the Guidelines. The onus falls on the applicant who seeks special or extraordinary expenses under s. 7 of the Guidelines to prove that the claimed expenses fall within one of the categories, and that the expenses are necessary in relation to the child's best interests, and reasonable having regard to the parental financial circumstances.

134In Titova v. Titov, the Ontario Court of Appeal set out the following steps for determining whether to make an award for section 7 special or extraordinary expenses:

a) calculate each party's income for child support purposes;

b) determine whether the expense in question falls within one of the enumerated categories set out in section 7 of the Guidelines;

c) determine whether the expense is necessary in relation to the child's best interests and is reasonable in relation to the means of the spouses and to those of the child and to the spending pattern prior to separation;

d) if the expense falls under section 7(1)(d) or (f), determine if the expense meets the definition of "extraordinary;"

e) consider what amount, if any, the child should reasonably contribute to the payment of the expense; and

f) finally, apply any tax deductions or credits to reach the net amount of the expense.

The Claims regarding S. 7 Expenses

Legal Issues Regarding the Mother's s. 7 Claims

135These are the issues to be determined regarding the s. 7 expenses claimed by the mother:

a) is the mother entitled to claim s. 7 expenses on a retroactive basis, and if so, starting when?

b) do all the expenses claimed by her properly qualify as s. 7 expenses?

c) is the mother entitled to re-imbursement for the full amounts she has claimed? and,

d) what is the father's proper proportionate share of those amounts?

The Father's Claims re s. 7 Expenses

136The order of 1 June 2012 was detailed and explicit regarding both the on-going s. 7 expenses and the retroactive s. 7 expenses ordered. These are the s. 7 orders made:

a) on-going s. 7 expenses $490 per month from 1 December 2011, based on father's pro rata share being 70%;

b) a one-time medical/dental expense of $202.10; and,

c) retroactive s. 7 expenses for 2008, 2009, 2010 and 2011 of $18,522.

137The father did not appeal the order.

138The father is now asking for proof of the s. 7 expenses claimed by the mother on which the order made 1 June 2012 was based. The previous final order regarding the table amount, made 1 November 2011, required the mother to produce details regarding the s. 7 expenses she was claiming, and ordered that she could seek the final orders regarding s. 7 expenses and retroactive s. 7 expenses with a Form 14B motion and supporting affidavit. The order of 12 December 2011 ordered the mother to serve this material on the father. There were several court dates, including a case conference, and the father was served with this material, and was given an opportunity to respond to the material presented by the mother regarding the s. 7 expenses, and was also granted an adjournment to do so. He filed no material in response to these claims. The s. 7 expenses were not dealt with by the court until five months after the court ordered the mother to provide details of the s. 7 expenses claimed.

139On 1 June 2012, when these matters were dealt with at court, the father came to court in the morning, was assisted by duty counsel, and then left court when the case was held over to the afternoon. He had received notice of these claims and the details of the claims since at least 21 February 2012. The court dealt with the claims for on-going and retroactive s. 7 expenses on 1 June 2012 and made detailed orders.

140Evidence was presented by the mother in 2012 to support the claims made for retroactive s. 7 expenses, and the father did not file any material in response, and did not remain at court on 1 June 2012, the day the final orders were made. There is no requirement for further production of that evidence. The court will not now go behind that order. The matter has been determined, the issue is res judicata.

141The on-going order for s. 7 expenses in the original order of 1 June 2012 was for daycare for the child while the mother works. The order of 1 June 2012 did not require the mother to produce receipts for the s. 7 expense ordered on an on-going basis. While it might have been prudent for the mother to have done so, there was no requirement that she do so.

142The mother works in the food and beverage industry at a major hotel. She is sometimes at work at 5 a.m., and sometimes returning home after 9 p.m.. Her child care requirements do not fit into the regular child care hours offered by institutional daycares, and in fact, the term "daycare" is not accurate to describe her needs in this regard.

143However, the child is now 12 years old, and will not require this level of care much longer. This part of the order of 1 June 2012 (the on-going s. 7 expense $490 per month from 1 December 2011) will terminate on 1 November 2018, after the child has turned 13 years old.

The Mother's Claims re s. 7 Expenses

144An order for contribution to special and extraordinary expenses under s. 7 of the Guidelines is discretionary as to both entitlement and amount. Claims for s. 7 expenses must be supported by relevant evidence. The court has the discretion to make an order based on estimates (s. 7(1)). The court also has discretion to order a contribution for all or any portion of a proper s. 7 expense (s. 7(1)).

145In addition to the claim for daycare, the mother has claimed reimbursement for these s. 7 expenses for the child:

a) prescription drugs;

b) dental expenses;

c) school expenses;

d) extra-curricular expenses;

e) vision/hearing expenses;

f) tennis; and,

g) physiotherapy.

146The nature of some of these expenses was unspecified, for example, it was unclear what was being claimed regarding the following:

a) school expenses;

b) extra-curricular expenses; and,

c) vision/hearing expenses;

147The mother did not produce detailed receipts for these expenses. However, the father conceded, during the argument of the motion to change, that certain of the expenses claimed were appropriate s. 7 expenses and that he was consenting to paying his proportionate share of those expenses. There was a dispute as to what his proportionate share should be (as each party was relying on different income figures for the father's income). These are the categories and the expenses he consents to share:

Year	Dental	Vision/Hearing	Prescription Drugs	Swimming	Activity Fee	Trip	Physio	Total
2012	$65.91	$15.00	$134.55	$1,792	$35.00			$2,042.46
2013	$97.60	$89.36		$35.00				$221.96
2014	$67.66			$35.00				$102.66
2015	$7.00	$182.99	$114.00					$303.99
2016	$255.00	$51.69	$260		$87.00			$653.69
2017	$142.00	$22.30	$327.00		$90.00			$581.30
							Total	$3,906.06

148The father shall contribute to these expenses in proportion to his income for those years.

149The father did not dispute the mother's claim for a lump sum payment of $2,450 for the s. 7 expense of orthodontic, and an order shall be made for this.

150There were other expenses claimed that the father was unwilling to contribute to (daycare, tennis, skiing and ballet). The daycare expense has been determined, and was dealt with in the original order of 1 June 2012. The mother did not produce receipts for these other expenses. While they may have qualified as s. 7 expenses, the cost of them was not proven. There will be no orders for the father to contribute to the cost of those expenses.

What is the Father's Proper Proportionate Share of those Amounts?

151The mother asks that the father contribute to the s. 7 expenses in proportion to his income for the relevant years. The parent's incomes for this period are as follows:

Year	Mother	Father (imputed)	Father's Proportionate Share
2012	$23,162	$60,000	72.1%
2013	$34,952	$60,000	63.2%
2014	$33,405	$60,000	64.2%
2015	$27,295	$60,000	68.7%
2016	$25,400	$60,000	70.3%
2017	$27,224	$60,000	68.8%

152The father did not object to the evidence provided regarding the mother's income and did not challenge it. The court accepts this evidence.

153The total of the allowable s. 7 expenses to be shared by the parents for the years 2012 to 2017 is $3,906.06. Based on their respective incomes over the years, the father's proportionate contribution to these expenses would be about 68% of the cost of the expenses. The father shall pay retroactive s. 7 expenses for 2012 to 2017 of $2,656.12.

154On a go forward basis, the parents shall share the s. 7 expenses in proportion to their incomes. At present, that split results in the father paying 68% of those expenses.

Future Litigation

155This family has had a significant amount of court time. They have been in litigation since 2009. The original order made in 2011 contained a clause restricting the father from bringing any further motions to change without leave. It is necessary to monitor the father's access to the court process. This clause should be included in this order.

Orders

156There will be the following final orders.

157The issued and entered orders for both 1 November 2011 and 1 June 2012 contain significant errors and do not accurately reflect the endorsements made:

a) the order of 1 November 2011 shows that it was a consent order and that both parents were present at court that day and both assisted by duty counsel. The actual endorsement shows different: there was no consent. The father was paged at both 11.10 a.m. and 3.20 p.m. and was not present; and,

b) the order of 1 June 2012 shows that the father was not present. He was present and assisted by duty counsel that day. He left the courtroom before the final orders were made.

158These amended orders shall be prepared by the mother and shall be re-issued to properly show the terms of the endorsement.

159The orders dated 1 November 2011 and 1 June 2012 are changed as follows:

a) the father shall pay child support for the child as follows:

b) table amount of support:

i. $557 per month from 1 January 2011 on imputed income of $60,000;

ii. $546 per month from 1 January 2012 on imputed income of $60,000;

iii. $556 per month from 1 December 2017 on imputed income of $60,000;

c) s. 7 expenses:

i. the on-going s. 7 expense $490 per month in the order of 1 June 2012 will terminate on 1 November 2018;

ii. a lump sum payment towards the s. 7 expense of orthodontic of $2,450;

iii. retroactive s. 7 expenses for 2012 to 2017 of $2,656.12;

iv. from 1 November 2018, 68% of the s. 7 expenses. The mother shall provide father with proof of the cost of these expenses quarterly;

d) the father shall produce to the mother every year, by 1 June, starting in 2018, copies of his Income Tax Returns and Notices of Assessment, pursuant to ss. 24.1 and the disclosure requirements of the Child Support Guidelines;

e) the father shall notify the mother in writing of changes to his income and his employment within 7 days of each change;

f) the father shall notify the mother immediately of any change to his residential address, e-mail address and telephone number;

g) this order results in arrears in child support (in both the table amount and s. 7 expenses). The father shall pay arrears of child support, in addition to the ongoing table amount and s. 7 expenses, in the amount of $400 per month starting 1 November 2018, until all arrears are paid in full. If there is any default in the child support monthly payments of longer than 30 days (either for ongoing support, s. 7 expenses or for arrears payments), the entire amount of arrears then owing is due and payable immediately;

h) the Family Responsibility Office may enforce this order by garnishment;

i) father shall not bring a motion to change without permission obtained in advance with a Form 14B, which does not have to be served on the mother unless the court orders; and,

j) any other claims by either parent not specifically addressed are dismissed.

Conclusion

160This litigation and the resulting retroactive award of both the table amount and the s. 7 expenses is not a good process for the payment of child support for anyone in this family. It was not in the child's interests to have been receiving for many years a lower amount of child support than she was entitled to. It was not in the mother's interest, and now, it will not be in the father's interests.

161While retroactive child support orders should be available to help correct these situations when they occur, the true responsibility of parents is to ensure that the situation never reaches a point when a retroactive order is needed.

Costs

162If costs are claimed, the parties may make written submissions for costs, no longer than two pages (with Offers to Settle and Summary of Costs attached), to be filed with a Form 14B motion. The mother shall serve and file by Friday 29 June 2018. Father shall serve and file by Friday 20 July 2018.