Court File and Parties
Ontario Court of Justice
Date: July 25, 2018
Court File No.: Toronto DFO 04 11451
Between:
Melina Mwenda Applicant
— And —
Patrick Madituka Respondent
Before: Justice E.B. Murray
Heard on: June 13 and July 6, 2018
Reasons for Judgment released on: July 25, 2018
Counsel
Ms. Melina Mwenda — applicant on her own behalf
Mr. Arthur Brown — counsel for the respondent
Judgment
MURRAY, E.B. J.:
Background
[1] Melina Mwenda and Patrick Madituka are the mother and father of two children, S.M., born […], 2002, and T.M., born […], 2007. They separated in 2012, and except for a three month attempt to reconcile in 2014, they have remained separate. Father married Esperance Lutumba in March 2015. She is not employed, and is supported by Father.
[2] The children have since separation always lived with and been cared for by Mother. Mother works as a hair dresser.
[3] After separation Father did not pay any support.
[4] Mother began this case in June 2017, asking for child support retroactive to January 2014, and an order for custody, with permission to travel with the children outside Canada and to obtain passports for the children without Father's consent.
[5] Father responded with a claim for joint custody and a consent to pay child support based on his income, which he represented to be $12,000 annually. He said that he was enrolled in a college social work program, expected to graduate in April 2018, and expected to then obtain employment which would enable him to pay more adequate support.
[6] There were three court appearances prior to the hearing of the application and cross-claim.
On October 2, 2017, a consent without prejudice order was made providing that Father would have access to the children for 4 hours each Saturday, and that he would commence paying support of $100 monthly, based on his declared income.
On December 11, 2017, again on a consent without prejudice basis, the access order was changed to provide that T.M. would be with Father every Saturday from 10 a.m. to 6 p.m.. S.M. did not wish to continue visits, and contact between her and Father was left subject to her wishes.
On January 22, 2018 an order was made requiring extensive financial disclosure from Father. Mother was skeptical of his claims of low income, based on what she observed of his lifestyle.
On June 4, 2018, Father announced that he would not be graduating in the spring of 2018, and would be spending another year at school, and therefore would not be in a position to pay meaningful support until the spring or summer of 2019. Mother did not accept this as reasonable. The court gave directions to have the case tried.
[7] A focused hearing was conducted on June 13 and July 6, 2018 at which both parties gave evidence and were cross examined. Father did not fully comply with the order for disclosure until midway through the hearing, when he appeared with a thick stack of documents.
[8] This is my decision after the hearing.
Children's Residential Schedule
[9] Father did not play a significant role in the children's lives for much of the time after separation in 2012. He left Toronto (where Mother and the children lived), and moved to Ottawa and later Montreal. While away he only saw the children once, for about 1-2 weeks. He did not return to Toronto until 2014. After the brief attempt at reconciliation, Father was without appropriate accommodation until the fall of 2014. He saw little of the children until October 2014.
[10] Both parties agree that after access started in October 2014 Father saw the children on some weekends until the fall of 2015. Father says he saw them on alternate weekends until Mother stopped allowing visits because she was jealous that he had married. Mother says that he saw the children on alternate weekends for just 3-4 months until one weekend in the fall of 2015. On that weekend she sent T.M. on a visit wearing shabby clothing, to underline the necessity of Father paying child support. After that, Father stopped seeing the children. Father acknowledges that Mother did dress T.M. in shabby clothes on this occasion, which made him ashamed—"I like to be looking good….that's the same thing for my kids…somehow she was fussing for me to buy all the time, you know, my kids some clothing".
[11] In any event, Father did not see either child after November 2015 until October 2017, when the parties agreed to an order for access. Father offered no evidence that he wrote to or called Mother to arrange access during this period. He did not take action to pursue access until Mother began this claim.
[12] Father's rebuilding of his relationship with S.M. did not go well. On an early visit they argued because he objected to her having an ear pierced. She wanted to leave the visit; he objected, physically blocking her way. S.M. jumped out a window. She has not seen Father since. He has wisely chosen not to pressure her. Mother supports further contact, consistent with S.M.'s wishes.
[13] As for T.M., Father would like to have some overnight access, and suggests alternate weekends. He and Mother agreed to start overnight access on a trial basis without court order in the spring of 2018. It has gone reasonably well.
[14] Mother agrees with Father's proposal, provided that he provides more appropriate sleeping accommodation—a separate bed, a bed not in the room where Father and his wife are sleeping. Father commits to this change.
[15] On the basis that Father is making this change, I order that T.M. spend time with Father on alternate weekends from Saturday morning at 10 a.m. to Sunday evening at 6 p.m. If Mother is planning a vacation with T.M. or if there is a special occasion involving the child that interferes with an access weekend, she shall give Father advance notice of these vacation plans and shall provide makeup access.
[16] The parties gave no evidence relevant to scheduling appropriate holiday/vacation access, and I am conscious that T.M. is still in the relatively early stages of becoming comfortable with Father. I will not make a specific order with respect to further access, but observe that if the access continues to go well, that T.M. should be able to spend additional time with Father during holidays and summer vacation.
[17] With respect to S.M., she shall spend time with Father as agreed by her and Father.
Decision-Making
[18] It is common ground that it is Mother who has been the primary caregiver and decision maker for the children for the past six years. I heard no evidence to suggest that the children have not done well in her care. The parties have no history of successfully making decisions together.
[19] The evidence indicates that the parties do not have the same values, and when they attempt to discuss issues about the children quickly reach an impasse.
For example, Mother enrolled S.M. last year in St. Joseph's secondary school, a Catholic girls school where she would receive instruction in English. Mother testified that given the child's talents and plans, improvement in her facility with English is important. Father objected strongly. The basis for his objection was not clear, but appeared to be based on the idea that a girls school would encourage S.M. to become a lesbian. Father testified that he is a "Christian" and "although I'm not against lesbian or gay people, as a Christian and the fact that she's still young, I didn't want her to …hang out , you know, in that area"".
Father objects to Mother letting S.M. sleep at a friend's house overnight, a practice which Mother thinks is fine.
As mentioned above, Father thinks it improper for S.M. to have pierced ears; Mother does not.
[20] When asked by his lawyer how he would resolve disagreements between himself and mother if joint custody was ordered, Father had no plan.
[21] Father seems to think that a joint custody order is necessary for him to be an involved parent or for him to have scheduled time with T.M.. That is not the case. Father is now, for example, able to attend functions at T.M.'s school and discuss his progress with staff. He has not done so. The residential schedule that I have ordered for T.M. is to be respected by both parties, and cannot be changed without mutual agreement.
[22] An order for joint custody is not in these children's best interests. Such an order could serve to increase the conflict between the parents.
[23] I order as follows:
Mother is to have custody of the children.
Except for medical emergency, Mother is to consult Father in advance about any major decision about the children and take his views into consideration. The consultation may be by way of email. If there is a medical emergency involving either child, she shall advise Father as soon as possible.
Father is entitled to obtain information from the children's school and doctors and other service providers and to meet with those professionals.
[24] The evidence establishes that Father in the past has refused a reasonable request by Mother to allow a child to travel. S.M. wished to go on a school trip to Ottawa, a trip on which Mother would be a chaperone. Father refused to consent, for no clear reason. I order that Mother may travel with either child outside Canada for trips of up to two weeks in duration without Father's prior consent. She shall advise him in advance of particulars of the trip, and provide contact information. She may obtain a passport and other government documentation for the children without his consent.
Child Support
[25] The issues regarding child support are as follows:
What is Father's Guideline income? Should income be imputed to him because of intentional unemployment or otherwise?
Should Father's student grant be included in income?
Should a retroactive order be made?
The Facts
[26] A review of the relevant history is set out below.
Child Support Prior to This Application
[27] Father is candid in admitting that he never paid child support after separation until this case was started. He says that he would have "helped out" if Mother was having a problem paying her bills, but he sees financial provision for the children as her responsibility, not a joint responsibility.
[28] Mother's evidence is that there was domestic violence early in the relationship and that Father was convicted of assaulting her. On an earlier separation in 2004, Mother did not request child support because she wanted a "clean break". Mother alleges that another incident in which Father choked her during an argument triggered the last separation in 2014.
[29] Father denies any violence on his part.
[30] The parties do agree that since separation in 2014 they have talked very little.
[31] Mother's evidence about when she asked for support after separation is unclear. In answer to a question from the court, she said that she had not asked until this application to the court in 2017. In response to a follow-up question, she said that she misunderstood, and thought she had been asked if she had claimed support in court before. She said that she asked for support "right away", after the 2012 separation, and continued to ask. Mother offered no emails or other documentary evidence of a request for support prior to this application.
[32] Father denies receiving any request for support prior to this application.
[33] Mother's evidence is that her putting shabby clothes on T.M. when he went to visit Father in 2015 was meant to embarrass him into providing support, after he failed to respond to her demands for money for the children. Father acknowledges that this incident happened and that it irritated him, but testified that he did not understand this as a prod to contribute to the children's expenses.
Father's Work History
[34] Father's evidence is that at the time of separation in 2012, he earned in the range of $27,000-30,000 annually, about the same as Mother earned. He worked as an administrative assistance for the Centre Francophone. When he went to Ottawa he attended a one-year college program for administrative assistants.
[35] After the final separation in June 2014, Father obtained a full time position at Metro News as a bilingual accounts receivable/payable clerk in which he was paid $23 an hour. He left his job at Metro News sometime in 2015; his evidence was not clear as to the date.
[36] In June 2015 Father began working part-time as a custodian for the Toronto French Catholic school board. His current rate of pay at the Board is $21.28 hourly; he is sometimes paid at a higher rate if he is filling in for his supervisor.
[37] Father's evidence is that he has been offered a full time position as a custodian at the Board, but he did not accept. If he did take up that position his annual income would be in excess of $40,000.
Father's Decision to Return to School
[38] In September 2016 Father began a full-time 2-year program in social work at the College Boreal. His evidence is that he made the change in order to "upgrade myself" and because "I like helping people". His evidence is that while enrolled in the program, his only income has been from his part-time work at the Board and social assistance payments, supplemented by the student loan and non-taxable grants he receives.
[39] When this case came to court in October 2017, Father argued that income should not be imputed to him because his under-employment was reasonable. Father said that he would complete his program in April 2018, and would then be able to get a job earning $27-28 and hour, yielding much more income than the $12,000 he estimated he was then earning.
[40] In June 2018 Father advised the court that his graduation was going to be delayed by a year because he had dropped two required courses. At trial he testified that he had dropped these courses in his first term in September 2016, in order to boost his taxable income by working more time at the Board. He thought that this was necessary to strengthen his application to sponsor his wife. Father testified that he only found out in September 2017 that these courses were required, and this led to the delay in his graduation. Father offered no explanation as to why he did not disclose this fact in court appearances prior to June 2018.
[41] At trial, Father testified that he was confident that he would obtain a position as a social worker paying in the range of $30-33 per hour when he graduates in April 2019.
[42] Pursuant to an order for disclosure, shortly before the trial Father furnished Notices of Assessment or Re-Assessment of his income for the years 2014-16. Canada Revenue Agency (CRA) adjusted his reports to increase his income for each of those years, by between $2,000-$15,000 each year. Father had no explanation as to why those increases were made. His income as adjusted is as follows:
- 2014: $24,831
- 2015: $37,000
- 2016: $21,442
[43] Father filed his 2017 Notice of Assessment indicating an income of $19,075. He expects his taxable income for 2018 and the first half of 2019 to be similar.
Non-Taxable OSAP Grants
[44] Father testified that for the school years 2016-2017 and 2017-2018 he received substantial non-taxable, non-repayable Ontario Student Award Program (OSAP) student grants, as well as loans which are repayable after graduation.
For 2016-17, he received a total of approximately $24,000 ($11,000 in September, $13,000 in January), consisting of a loan of approximately $5,000 and grant of approximately $19,000.
For 2017-18, he received a total of $22,205, consisting of a loan of $7,140 and a grant of $15,065.
For the year 2018-2019, he expects to receive about $22,000, with the same balance of loan/grant as the prior year.
[45] Father's evidence is that he uses the funds received from OSAP as well as his salary from the Board to pay all living expenses for himself and his wife Esperance. In cross-examination it was established that these expenses included $1575 for a ring for Esperance, and $1536 for a flat screen TV for their home.
[46] Father's evidence is that his education costs for tuition and books are easily covered by the student loans he receives.
Evidence About Undisclosed Income
[47] There is evidence supporting Mother's allegation that Father is receiving funds over and above what he receives from his employment at the Board, OSAP, and the occasional receipt of social assistance payments.
- Father has two accounts, one at Bank of Nova Scotia (BNS) to which his Board pay and OSAP funds are deposited, and an account at the Royal Bank (RBC) that is joint with Esperance. According to Father, Esperance has no income and he is the only source of any deposits made to these accounts. Mother questioned Father about the source of periodic deposits made to the RBC account since January 2017, deposits that were not transfers from the BNS account, deposits which ranged from small amounts to deposits of $500-800 dollars.
Father had trouble providing an explanation for these deposits, saying only that perhaps he had withdrawn sums of cash from the BNS account and had then chosen to deposit them in the RBC account.
I do not find this explanation credible.
- Mother produced evidence of Father advertising an African hot sauce business. She also produced his Facebook post thanking friends for the success of the business, saying that he had sold many units in the past four months. Father acknowledged that this business existed and that some sales had occurred, but said it was his wife's enterprise. However, in his cross-examination Father acknowledged that some of the unexplained deposits to his RBC account were probably from sales of this sauce. He confirmed that only he made deposits to this account.
[48] I am satisfied that Father does enjoy some income over and above his Board salary and OSAP and social assistance funds. Despite Mother's efforts, however, the evidence is not sufficient to enable the court to quantify this undeclared income.
Analysis
Should Income Be Imputed to Father?
[49] Parents have an ongoing obligation to support their children, and to work to the best of their capacity to provide this support.
[50] Section 19 of the Guidelines gives the court a broad discretion to impute income to a parent "as it considered appropriate in the circumstances". In this case, there are two bases on which income might be potentially imputed to Father:
Intentional under-employment;
Receipt of tax-exempt income (OSAP grants).
Intentional Underemployment
[51] Section 19 provides as follows:
- (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 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 spouse;
[52] Father is clearly intentionally under-employed. He is only working part time. According to his 2017 return, he is earning half of what he would earn if employed full time. He has turned down the offer of a full-time job.
[53] What is the reason for his under-employment? Is this under-employment "required" by Father's "reasonable educational needs"? The onus is on Father to establish this. His evidence is that he "wants to help people" as a social worker, and the he wants to "upgrade" himself.
[54] In assessing the reasonableness of Father's choice, I note that this choice deprives the children of almost all the support each month that they would be entitled to receive under the Guidelines if he had taken up the full time position offered to him at the Board. Mother's income is modest. Proper support received from Father would make a difference to these children.
[55] Caselaw is clear that a parent's mere desire to have more interesting or fulfilling work is not an acceptable reason for underemployment.
[56] While pursuit of better paid employment might justify a temporary period of under-employment, that choice must be assessed in the light of a number of factors—the quantum of increase in income expected, the certainty that there will be an increase, the duration of the period of education, the diligence of the parent in pursuing that education, the provision that the parent is prepared to put in place to protect the children from the results of the decrease in support caused by underemployment, and the ability of the custodial parent to protect the children from the results of that decrease in support.
[57] In this case, it is not clear that Father's choice to be under-employed, when viewed from the children's perspective, was reasonable.
According to Father's estimates, upon completion of the program he will enjoy an increase in income, from about $6-10 per hour. He says that other graduates of his program have obtained jobs paying at rates of $27-33 per hour, and he is confident that he can do so.
However, Father has been careless already in doing what needs to be done to finish the program, delaying its completion for at least one year.
As well, Father makes no proposal (such as payment of an amount in excess of the table amount, perhaps with credit for any overpayment after he obtains his new job) to provide the children with more adequate support pending the completion of this program.
[58] Section 19 is discretionary. Even if the court finds that Father's under-employment is not required by his reasonable educational needs, it is not required that income be imputed to him. In this case, I take into account the following:
Father has already invested two years in this program.
Upon completion his income should be approximately $10,000 annually in excess of what he could be earning now in a full time job with the Board. Assuming that Father discloses his higher income, his decision to work part-time to obtain a social work qualification could ultimately benefit the children.
As set out below, I find that Father's current Guideline income is now significantly higher than he submits. This finding substantially mitigates the effect on the children of Father's decision to be under-employed.
[59] I do not impute income to Father at this time on the basis of intentional underemployment. If, however, he fails to complete his program by April 2019 and continues to be under-employed, then that would be a material change in circumstances that could justify a variation of this order.
Receipt of Tax-Exempt Income
[60] Father receives student (OSAP) grants as well as loans. The grants total approximately $16,000-19,000 each school year. Father testified that his OSAP grants are non-taxable. He does not declare these payments as income to CRA.
[61] In response to a question from the court as to whether these grants constitute guideline income, Father's lawyer argued that the grant cannot be considered "income" for Guideline purposes, because it is intended to assist him in a program of education.
[62] "Income" under the guidelines is defined as "the annual income determined under sections 15 to 20" of the guidelines. Subsection 15(1) provides that a spouse's annual income is determined in accordance with section 16 to 20 of the Guidelines. Section 16 provides as follows:
- Calculation of annual income. -- Subject to sections 17 to 20, a parent's or spouse's annual income is determined using the sources of income set out under the heading "Total income" in the T1 General Form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.
[63] Father's grant payment does not appear as income on his tax return. Section 17 and 18 are not relevant to this case.
[64] The Guidelines clearly anticipate, however, that some Guideline income will not be taxable in the hands of the recipient. Specific reference to such income is made Section 19(1)(h) allows a court to impute income to an individual who "derives a significant portion of income from ... sources ... that are exempt from tax."
[65] I was referred to no caselaw by Father's lawyer as to whether student grants constitute Guideline income, and found little in my own research on this subject. There are many cases in which courts have rejected the argument that student loans are Guideline income, usually emphasizing that the monies require repayment. In one such case, the court accepted that the grant portion of the monies paid to the student parent was "income"; however, that proposition was agreed upon by the parties.
[66] What factors might indicate that non-taxable funds paid to a payor should be considered Guideline income? In Rivard v. Hankiewicz, the court considered the issue of whether non-taxable annuity payments awarded because of personal injury should be considered Guideline income, and observed as follows.
The guidelines scheme is based on a prototypical payor who derives the funds for the support of his or her family from money that is taxable--wages, investment or rental income. It appears to me that section 19 of the guidelines was crafted to allow courts make determinations of child support payable by parents who do not fit this prototype -- because, for example, they have not reported income to the court or to the C.C.R.A., or because they are intentionally underemployed, or because the source of funds upon which they rely for support for their family is exempt from tax or taxed at a lower rate than it would be in Canada. In my view, the more a stream of tax-exempt funds resembles taxable income, the more compelling is the argument that this stream should be found to be "income" under the guidelines for the purpose of determining child support.
Courts have found non-taxable funds received by a payor to be Guidelines income in consideration of a number of factors:
The funds received are generated by work done or through investments, or paid as compensation to which the payor is legally entitled when deprived of such work or investments. The funds are not simply a return of capital or a draw on capital. (Dalton v. Craig, 2002 CarswellOnt 42, Ont. C.A.)
Receipt is not gratuitous. The recipient will have a right to receive the payments. Thus, amounts received as a gift will not usually be considered income. (Ell v. Ell, 2002 BCSC 1530, B.C.J. 2880, B.C.S.C.)
Payment is often recurrent.
The funds are typically used to finance a significant proportion of the recipient's living expenses. (Fung v. Lin, 2001 CarswellOnt 488 (Ont. Fam. Ct.); Parkes v. Mones, 2001 SKQB 572, S.J. 777 (Sask. Q.B.))
[67] I consider the instant case in the light of these factors.
Father's grant funds are not a return of capital. Work is expected of him as an OSAP recipient, registration and coursework in an Ontario post-secondary institution.
Father is entitled to receipt of the funds, having fulfilled the requirements of the OSAP program.
Payment is recurrent, made in September and January of the academic year.
Monies from the grant are used to pay a significant proportion of Father's living expenses. (The amount of the grant is approximately the same as Father's income from the Board.)
If Father's educational costs were such that he was required to use some of the grant to pay these expenses, then this would weigh against characterization of the grant as Guideline income. That, however, is not the case. Father's evidence establishes that his educational expenses (cost of tuition and books) are more than covered by the loans received from OSAP.
[68] The grant funds are available, if Father chooses, to contribute to his children's expenses.
[69] I find that Father's OSAP grant constitutes Guideline income.
[70] Because these funds are non-taxable, a gross-up should be applied. With the gross-up applied to the grant portion of Father's income, his Guideline income for 2017 was $41,485 and for 2018 is $40,173. The calculations and gross-up calculations are attached as a schedule to this decision.
[71] Based on the evidence, Father's income for the first half of 2019 will be approximately what it has been in 2018, derived from his work at the Board and the OSAP grant. I am prepared to make a prospective order based on this income, inclusive of the grossed-up amount of the OSAP grant.
[72] Should this order cover Father's obligations only up to June 2019?
[73] In my view, the fairest approach is to base a prospective order on this income without a termination date, variable by either party upon a material change in circumstances. Father's income after he completes this program should not be less than the imputed income upon which this order is based. He is confident that he will obtain employment after completion of his program in April 2019, and that this employment should result in a full time position with income of between $27-33 hourly.
[74] My order is that Father pay support as follows:
Commencing July 1, 2017 to and on the first day of each month following, up to and including November 1, 2017, the sum of $605 monthly, based on an income of $41,485 yearly;
On December 1, 2017, the sum of $617, based on an income of $41,485 yearly;
Commencing January 1, 2018 and on the first day of each month following, the sum of $599 monthly, based on an income of $40,173 yearly.
[75] Father shall advise Mother forthwith of the particulars of income from any new position.
Retroactive Claim
[76] Mother claims support retroactive to January 1, 2014. I will not consider this claim for the period prior to July 2014, as the evidence is that the parties reconciled and cohabited from March –June 2014.
[77] The Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, set out four factors which a court should consider in determining claims for retroactive child support. The factors are:
Reason why support was not claimed earlier;
Conduct of the payor;
Circumstances of the child;
Hardship to the payor of a retroactive order.
[78] The Court held that where retroactive support is ordered, the award should usually commence at the date of effective notice—the date when the recipient parent advised the payor of her wish to receive child support, or an increase in support. The court opened the door for retroactive payment to commence earlier where the payor had engaged in "blameworthy conduct".
[79] What is the date of effective notice in this case? The Court in D.B.S. emphasized that nothing formal or extensive is required for effective notice to be given. Effective notice is "any indication by the recipient parent that child support should be paid".
[80] Mother's evidence about when she first asked Father for support is sparse and not entirely clear.
[81] Father's lawyer submits that absent clear evidence of a demand for support prior to her commencement of this application, the court should be cautious in accepting bald allegations of earlier demands without supporting documentary evidence.
[82] I accept that Mother may have been slow in requesting support. The evidence establishes that she was reluctant at the time of the 2004 separation to ask for support, because of her fear of Father, and that currently she dislikes communicating with him.
[83] However, Father's evidence about the November 2015 incident (the "shoddy clothes" incident) persuades me that Mother had communicated to him at least by November 2015 that he should pay child support. Father characterized the incident as another example of "her fussing for me to buy all the time". I take that as acknowledgment by Father that Mother was demanding money for the children. I do not find that it is necessary for her to use the words "support" to constitute effective notice of her claim.
[84] I find that the date of effective notice is November 1, 2015.
[85] I turn to the factors relevant to whether the order should be made.
Reason for the Delay in Commencement of the Claim
[86] Mother did not address this issue in her evidence. This factor weighs against a retroactive order, although its significance is mitigated by the likelihood that at least some delay was occasioned by the following facts:
Mother was self-represented and had to prepare the court documents and initiate the application on her own, and
This work was completed while Mother was employed full-time and solely responsible for the care of and financial provision for the children.
Conduct of the Payor
[87] The Court in D.B.S. held that "blameworthy conduct" was any behavior that privileges the payor's interests over that of his children's right to receive appropriate support.
[88] Father's behaviour was blameworthy in the extreme. He paid no support. This pattern continued for years, even after Mother went to the extreme of sending T.M. to him looking poorly, as a prod to his conscience. Father failed to acknowledge that he had any obligation to contribute to the support of S.M. and T.M.
[89] This factor weighs heavily in favour of a retroactive order.
Circumstances of the Children
[90] I have no evidence on this point. This is a neutral factor in the analysis.
Hardship of a Retroactive Order
[91] Courts often comment that any hardship created by a retroactive order has been created by the payor himself. That is true here. This is not a case where the payor had an agreement or order which, although stale or inadequate, was complied with. This is a case in which the payor parent simply refused to recognize any obligation to support the children.
[92] Any hardship resulting from a retroactive order can be managed by imposition of appropriate payment terms.
Conclusion
[93] The court in D.B.S. characterized its decision as a fair balancing between a payor's reliance interest in the "certainty" of the pre-application arrangement under the former order or agreement and "flexibility" and fairness to the child who is entitled to appropriate support. Here, Father has no tenable argument that he had a legitimate interest, an interest meriting protection, in the "certainty" of the pre-application status quo.
[94] I make an order retroactive to November 1, 2015, based on Father's Guideline income as follows.
Commencing November 1, 2015 and continuing on December 1, 2015, the sum of $534 monthly, based on an income of $37,000 yearly;
Commencing January 1, 2016, up to and including December 1, 2016, the sum of $491 monthly, based on an income of $33,654 yearly;
Commencing January 1, 2017, up to and including June 1, 2017, the sum of $605 monthly, based on an income of $41,485 yearly.
[95] The arrears created by this order will be paid at a rate of $100 monthly, commencing August 1, 2018. A Support Deduction Order shall issue.
Release and Signature
Released: July 25, 2018
Signed: Justice E.B. Murray
Schedule A – Father's Income
1. OSAP Grant Income:
a. 2016-2017
$24,000 estimated by Father, of which approximately $5,000 was loan, leaving $19,000 as non-taxable grant. Allocate ½, or $9,500 to 2016 calendar year and $9,500 to 2017 calendar year.
b. 2017-2018
Documentary confirmation accepted by Father, $22,205 approved of which $5,880 is loan, leaving $16,325 as non-taxable grant. Allocate ½ or $8,162.50 to 2017 calendar year and $8,162.50 to 2018 calendar year.
c. 2018-2019
Father estimates package will be similar to 2017-2018, total approximately $22,000. With respect to non-taxable grant of $16,325, allocate ½ or $8,162.50 to 2018 calendar year and $8,162.50 to 2019 calendar year.
2. Total Income
a. 2015
$37,000 as shown in Notice of Reassessment
b. 2016
$21,442 as shown on Notice of Assessment $9,500 OSAP grant September 2016 $30,942 Total income $33,654 after gross-up of grant — see attached calculation
c. 2017
$19,075 as shown in Notice of Assessment $9,500 OSAP grant January 2017 $8,162.50 OSAP grant September 2017 $36,737.50 Total income $41,485 after gross-up of grant — see attached calculation
d. 2018
$19,075 Father's estimated income for 2018 $8,162.50 OSAP grant January 2018 $8,162.50 Estimated OSAP grant September 2018 $35,400 Total income $40,173 after gross-up of grant — see attached calculation
Footnotes
[1] $21.28/hr. × 37.5 hrs./wk. × 52 wks. = $41,496.
[2] As per Father's viva voce testimony
[3] Father's viva voce evidence based on an earlier OSAP report as to funds paid to him for this year indicated that he would be paid substantially more—a total of $26,171, being a loan of $6,930 and grant of $19,241. The documentary evidence filed suggests that this was recalculated to the lower amounts above, and that he may have been overpaid for the actual 2017-2018 school year.
[4] As per Father's viva voce testimony
[5] Szucs v. Freeman, 2007 ONCJ 96
[6] Father is paying $100 monthly. If employed full time, he would earn $41,496 and pay $617 monthly.
[7] VanGool v. VanGool, 44 RFL (4th) 314 (BCCA); Krupa v. Krupa, 2010 BCSC 1400
[8] CRA advises at Line 130 of the Income Tax and Benefit Guide the circumstances in which a student grant is non-taxable.
[9] E.g., Gallagher v. Gallagher, 2012 ONSC 6321
[10] Maynard v. Maynard, (1999) B.C.J. 325 (BCSC)
[11] Rivard v. Hankiewicz, 2007 ONCJ 180
[12] Loans range from $5,000-7,000 annually; books and tuition, according to Father's evidence total about $4,500 annually.
[13] Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855 (S.C.J.); Riel v. Holland, [2003] O.J. No. 3901 (C.A.)
[14] Line 121
[15] Income as set out in Notice of Re-assessment
[16] Income with OSAP grant for September 2016 included and gross-up, as set out in Schedule A