Court File and Parties

Court File No.: Toronto DFO-09-10336-02 A1

Date: 2018-09-07

Ontario Court of Justice

Between:

KELLY ARMSTRONG Applicant, Responding Party

— AND —

KELLY JAMES McCUSKER Respondent, Moving Party

Before: Justice Sheilagh O'Connell

Heard on: December 14, 2017, January 10, 12, 24, February 28, 2018

Reasons for Judgment released on: September 7, 2018

Counsel:

• Ms Ghina Al-Sewaidi — counsel for the Moving Party, Kelly McCusker
• Ms Sarah Clarke — Amicus of the Court
• Applicant and Responding Party, Ms Kelly Armstrong — not appearing

O'CONNELL J.:

1. Introduction and Overview

[1] The Respondent father, Kelly J. McCusker ("the father" or "Mr. McCusker") has brought a motion to change the child support provisions of the Final Orders of Justice Marion Cohen dated June 3, 2015 and August 13, 2015 as follows:

1. An Order staying the ongoing child support and section 7 expenses until a further order of the court and that the father shall notify the mother within two weeks of his obtaining and maintaining employment for at least two months;

2. An Order recalculating all child support and section 7 expense arrears to date to reflect the father's and the parties' "actual income", subject to production of actual receipts of the section 7 expenses by the Applicant mother.

[2] On June 3, 2015, Justice Marion Cohen made a Final Order, on consent of the parties, that commencing June 1, 2015, the father pay ongoing child support in the amount of $245.00 per month, based on an annual imputed income of $30,000.00. In addition, Justice Cohen ordered, also on consent, that the father pay a further $289.00 per month towards the child's section 7 expenses and fixed child support arrears at $25,000.00.

[3] On August 13, 2015, Justice Cohen ordered that the child support arrears be paid by the father at a monthly rate of $300.00, commencing August 1st, 2015.

[4] The father fell into significant arrears under both Final Orders. The Family Responsibility Office commenced default enforcement proceedings.

[5] This father brought this motion to change after FRO commenced a motion for a warrant of committal on May 16, 2016. FRO is seeking a warrant of committal to issue, committing the father to jail for a period sixty-five days until certain child support arrears are paid. The committal proceeding has been adjourned pending the outcome of this motion to change.

[6] The child who is entitled to the child support is Skyla Jett McCusker Armstrong, born December 6, 2007 ("Skyla"). Skyla is now 10 years old. She resides with her mother and has access to her father. The parties have been involved in a lengthy and acrimonious history of litigation regarding Skyla since she was approximately two years old.

[7] The father raises two novel issues in his motion to change child support: 1) he asks the Court to consider as a "material" change in circumstances, the impact of his experiences as an Indigenous man on his ability to pay child support; and 2) he seeks to apply what are known as the "Gladue" principles to determine whether the relief he seeks should be granted.

[8] The father raised similar issues during the FRO committal proceedings and on February 2, 2017, Justice Marion Cohen adjourned those proceedings so that amicus could be appointed to make submissions on the application of "Gladue" factors in support enforcement and committal proceedings.

[9] On September 25, 2017, after the father commenced this motion to change, Justice Alex Finlayson ordered that amicus be appointed in this proceeding as well to assist the court in addressing similar issues.

This Hearing

[10] This hearing proceeded over a period four days. The father filed two affidavits, a sworn financial statement, and a document brief. He further testified on his own behalf. The father also called one witness, Dr. Suzanne Stewart, a clinical psychologist who specializes in Indigenous mental health issues. Dr. Stewart conducted a mental health assessment of the father and prepared a written report which was filed with the Court.

[11] Ms Armstrong, the mother, served and filed a sworn response and a sworn financial statement to the motion to change, however, she did not participate in the hearing, nor did she give evidence or call witnesses. In her amended response to the motion to change filed, the mother expressed extreme frustration at what she described as a third lengthy proceeding regarding child support. She advised the court that she filed responding materials so that the court knows her position and that she will not "idly stand by and accept that [the father] cannot or should not pay child support". However, she stated that she can no longer afford a lawyer and she can no longer attend yet another lengthy court hearing at the risk of losing her employment and causing her further hardship.

[12] Neither father's counsel nor amicus objected to the mother's responding materials and sworn financial statement forming part of the evidence before the court and these materials were included in the Hearing Record and Document Briefs filed as exhibits.

The Gladue Report

[13] At the commencement of the hearing the father sought to admit what is known as a "Gladue Report" as evidence in the motion to change. The amicus objected. The Gladue Report was prepared by Aboriginal Legal Services ("ALS") for the sole purpose of the FRO committal hearing. It was a confidential document prepared by an ALS case worker and not to be used for any other purpose than the motion for the warrant for committal. It was later sealed in that court file.

[14] The hearing was briefly adjourned so that Aboriginal Legal Services could be served with notice of the father's request to seek admission of the Gladue Report. Given the potential consequences to Aboriginal Legal Services if the court granted the admission of a Gladue Report for consideration on a motion to change child support, the court wanted to give Aboriginal Legal Services an opportunity to address the court and make submissions.

[15] At the return date for the hearing, father's counsel advised that he was no longer seeking to admit the Gladue report into evidence.

2. The Issues

[16] The main issue for me to determine is whether there has been a change in circumstances within the meaning of the Child Support Guidelines since the 2015 Final Orders of Justice Cohen regarding ongoing child support and arrears, or that evidence not available on the previous hearing has become available that would warrant a change to the Final Orders. In particular, I consider the following issues:

1. The impact of the Indigenous identity of both the father and the mother on the relief sought in this motion to change;

2. The analysis used to decide such issues on a motion to change child support;

3. Whether and to what extent Gladue principles impact the analysis used to determine this motion to change child support.

3. The Positions of the Parties

The Father's Position as Moving Party

[17] It is the father's position that he currently has no ability to pay child support. In the alternative, it is his position that his income should be imputed at minimum wage for ongoing child support, but no more than $25,000.00 annually, and that all ongoing section 7 expenses should be terminated and that all arrears should be rescinded or re-calculated.

[18] The father submits that Gladue principles should be applied in family law and are relevant to determining motions to change child support. He argues that factors involving his Indigenous status were not contemplated at the time of the Final Orders of Justice Cohen dated June 3, 2015 and August 13, 2015. He submits that if he is able to adduce evidence relevant to Gladue principles, then that would amount to a material change in circumstances warranting a review of the Final Orders. While he acknowledges that his Indigenous status has remained unchanged, his status was not considered in the original orders.

[19] The father submits that the psychological assessment prepared by Dr. Stewart is new evidence that considers the impact of his experiences and trauma as an Indigenous youth and man on his mental health and his ability to pay child support.

[20] The father further submits that this Court should take judicial notice of the "broad and systemic background factors affecting Aboriginal people", as stated by the Supreme Court of Canada in R. v. Ipeelee, where the Court clarified that, "courts must take judicial notice of such matters as the history of colonialism, displacement and residential schools and hoe that history continues to translate into lower educational attainment, lower incomes, higher unemployment, lower incomes, higher rates of substance abuse and suicide and of course, higher levels of incarceration for Aboriginal offenders."

The Mother's Position as Responding Party

[21] The mother submits in her written materials that the father's motion to change should be dismissed. In the alternative, she submits that the ongoing child support should continue at $245.00 per month, based on an income of $30,000.00 and that arrears should be re-calculated from June 3, 2015 to present. She does not appear to be seeking ongoing section 7 expenses, based on her written materials filed.

[22] The mother submits that as an Indigenous person herself, she is "deeply opposed to and offended" by the father's position that he should be absolved from paying child support on the basis that he is an Indigenous person. She disputes that the father has met the test in "proving any material change in circumstance whatsoever." She asserts that the father has not provided any financial disclosure since 2014 despite a court order requiring ongoing and annual disclosure between the parties and he has not voluntarily paid any child support since November 4, 2014, nor has he paid any amount towards the cost order made against him.

[23] According to the mother, "Mr. McCusker is able-bodied and employable and he can find work. He has more than demonstrated that he is capable of full-time employment and he can therefore find a way to give something to Skyla. There should be nothing else more important in the world to him than supporting Skyla. If he put half the effort into finding and keeping a job than he does in avoiding paying child support through these proceedings, he would be earning a steady and comfortable income. Mr. McCusker could, in the very least, obtain a full-time, minimum wage job and earn at least $30,000.00 per year, as we agreed when we settled on consent."

The Position of Amicus

[24] The amicus submits that on a motion to change child support the court can and should consider an Indigenous payor's experiences and whether this interferes with the ability and capacity of an Indigenous payor to pay support.

[25] The amicus takes no position on whether the evidence in this case meets the threshold of "material change in circumstances" or "fresh evidence" necessary for Mr. McCusker to discharge his onus on his motion to change support.

[26] However, the amicus further submits that Gladue principles are not relevant in this case, nor should they be applied on motions to change child support.

[27] The amicus asserts that Gladue principles are remedial in nature and flow from "a specific recognition of the legislature and the Supreme Court of Canada that the over-incarceration of Indigenous peoples is unjust; such overrepresentation stems from historic inequalities in health, education, systemic racism, and government policies that have led to disproportionate rates of substance abuse, community fragmentation and high levels of poverty. These are important considerations when determining why and Indigenous offender has come before the criminal court and to what extent the state ought to interfere with that person's liberty interest."

[28] The amicus submits that while Gladue principles have been applied beyond sentencing, Gladue should only be applied when the liberty interests of an Indigenous person are at stake. The requirement to pay child support does not trigger a payor's liberty interest. There are no remedial steps to be taken and "the focus is on the child and ensuring that the child is adequately supported."

4. Background Facts

[29] Mr. McCusker is 48 years old. Ms. Armstrong is 37 years old. They are the biological parents of Skyla, who is ten years old. Skyla resides with her mother and has access with the father.

[30] Mr. McCusker has no other children. Ms. Armstrong has one other child with her current partner. Both parties live in Toronto.

[31] Mr. McCusker lives with his current partner and her two children of a previous relationship.

[32] Mr. McCusker is unemployed, having being previously primarily employed as a creative director or consultant in a number of different companies. He is financially supported by his current partner. According to his sworn Financial Statement filed, he has been unemployed since the end of 2014.

[33] Ms Armstrong is employed at a bakery and restaurant and according to her sworn Financial Statement filed, she earns $71,869.44 annually.

[34] The parties became involved in a relationship in 2006 and approximately three month later, the mother became pregnant with Skyla. The parties started cohabiting in 2007, shortly after the mother's pregnancy. The parties never married.

[35] The parties separated in or about March of 2009, although they briefly reconciled in the summer and early fall of 2009. The parties permanently separated in the fall of 2009.

[36] Both parents identify as Indigenous. Ms Armstrong states that she is of Algonquin descent on her mother's side and that the origin of her Aboriginal roots on her father's side is unknown.

[37] Mr. McCusker was adopted as a young child by a white family. He testified that his birth mother was white but that he believes his birth father was from Fort Chipewayan First Nations in Northern Alberta. His father was described as "Indian Unknown" on Mr. McCusker's birth certificate. Mr. McCusker identifies culturally as a member of the Cree Nation because of his close relationship and involvement with the Cree community in Ontario and Northern Alberta.

[38] Both Mr. McCusker and Ms Armstrong agree that Skyla is an Indigenous child.

[39] During this hearing, Mr. McCusker questioned the mother's Indigenous heritage and testified that he did not believe it. He testified that the mother never told him that she was Indigenous when they were together. He provided no other evidence that her self-identification was untrue.

5. Litigation and Procedural History

[40] The mother first brought her application for custody and access in April of 2009 when the parties first separated. The father did not participate or attend this hearing and he was noted in default. The mother obtained a Final Order of custody before Justice Cohen dated June 10, 2009, on an unopposed basis. The mother did not seek child support at the time of her initial application. According to the Affidavit for an Uncontested Trial sworn by the mother on June 10, 2009, she did not seek child support at that time because the father was "unemployed and homeless."

[41] In 2011, the mother brought a separate application for child support. In that application, the mother obtained a child support order based on income imputed to the father in the amount of $100,000.00, again following an uncontested trial, as the father did not attend or participate. The Final Order for child support was granted on July 5, 2011 and provided that the father pay $877.00 per month in child support and $577.00 per month in section 7 expenses.

[42] This child support order was filed with the Family Responsibility Office for enforcement. The father fell into significant arrears under this order. In May of 2012, FRO commenced a default hearing against the father.

[43] In 2013, as a result of the default hearing, the father brought his first motion to change the Final 2011 Order. The father's first motion to change and the first default hearing were heard concurrently and there were multiple appearances on both proceedings over the next three years.

[44] As indicated, the history of litigation between these parties has been lengthy and acrimonious. The father's motion to change the custody and access provisions of Justice Cohen's Final Order was finally resolved in 2017, following a contested hearing before me. On August 15, 2017, for written reasons, I ordered that the mother shall continue to have sole custody of the child, the father shall have overnight access, subject to a number of conditions set out in the Final Order, in addition to holiday access and other incidents of access.

[45] The father's first motion to change child support was finally resolved on consent on June 3, 2015 before Justice Marion Cohen. Following a settlement conference, and on consent of the parties, the father was ordered to pay $245.00 per month in ongoing child support and $289.00 per month for section 7 expenses based upon an imputed income of $30,000.00. Arrears were fixed at $25,000.00. On August 13, 2015, Justice Cohen ordered the father to pay the support arrears at the rate of $300.00 per month. The total monthly payment was therefore $834.00.

[46] On September 24, 2015, the parties then entered into a Final Default Order in the FRO default proceeding on the same terms as the orders made on the motion to change child support. This Order was also made on consent. Justice Cohen ordered that the father pay $534.00 per month towards ongoing child support and section 7 expenses and $300.00 per month towards the arrears or be incarcerated for five (5) days for every default.

[47] According to the Statement of Arrears filed, no payments were made under the Final Default Order. On March 16, 2016, FRO commenced a motion for a warrant for committal. Following this, Mr. McCusker made one payment of $1,000.00 on March 31, 2016. No further payments have been made since that time.

[48] The motion for a warrant for committal has been adjourned several times and amended to include several more months of default. The Director of the Family Responsibility Office is seeking to commit Mr. McCusker to jail for a period of sixty five days or until the sum of child support arrears are paid. The arrears are now at approximately $44,000.00.

6. Summary of the Relevant Evidence at the Motion to Change Hearing

Mr. Kelly J. McCusker, the Moving Party

[49] Mr. McCusker testified that he was born in Edmonton, Alberta. He was abandoned by his mother at birth. His birth mother was a white woman of German/French descent. He believes that his birth father was from the Fort Chippewayan First Nation in Northern Alberta. His original birth certificate identifies his father as "Indian Unknown".

[50] Mr. McCusker was adopted by white parents of German and Irish descent when he was approximately twelve months old. He was raised in Calgary, Alberta. He was an only child. He described a middle class childhood. Mr. McCusker gave evidence that his adoptive parents explained that he was "Native" when he was approximately four years of age.

[51] The father testified that he did not seek out either birth parent as an adult. When asked, he testified that he has no desire to meet his birth mother and he expressed being very angry at her for abandoning him at birth. He testified that he learned that she came from a prominent family. Similarly, he has not sought out a connection with his birth father and has no desire to do so. He is not a Status Indian.

[52] Mr. McCusker identifies culturally as a member of the Cree Nation because of his close relationship with that community in Ontario and Northern Alberta for many years.

[53] Mr. McCusker described his confusion growing up in a white family with no one to teach him about his Indigenous culture. He described feeling disconnected from his culture and that this was a difficult and disturbing experience for him. He gave evidence that his parents encouraged him to seek out other Indigenous communities surrounding Calgary. When he was 11 years old, he went to his first sweat lodge through a cultural exchange program at a camp run by a First Nation's community. He testified that throughout his childhood he always sought out connections to his Indigenous heritage.

[54] Mr. McCusker also described a difficult home life. He testified that his adoptive father was an active alcoholic and that his adoptive mother also had a drinking problem. He described an emotionally and physically abusive home life. He gave evidence that his father was a heavy drinker and was violent towards him when he was drinking.

[55] Mr. McCusker described school and formal education as always being a struggle for him. He testified that despite having an extremely high IQ and being far more advanced in reading than other students, he has "never conformed to westernized education". He described that he was badly mistreated at school, and experienced racism, eventually causing him to drop out in grade 8. This created "an enormous impact on his ability to find and sustain employment".

[56] Mr. McCusker also described being involved with the criminal justice system as a youth and young adult. He gave evidence that he ran away from home at the age of 16 and was living on the streets. He was charged and convicted of fraud related offences for impersonating an employee at the Petro Canada building in Calgary. He was briefly incarcerated (approximately 4 days) and received an absolute discharge at the age of 18. He described the period of incarceration as being very traumatic.

[57] Mr. McCusker has had very little formal education past grade 9. He attended an Aboriginal Bridging program for one year however he did not obtain a high school equivalency diploma. In his late twenties, he attended the Vancouver Film School.

[58] Mr. McCusker became involved in Indigenous communities in his early 20s. He described meeting with Elders in his twenties who encouraged him to learn traditional pathways. He began "walking the Red Road" to connect with his Indigenous heritage and culture. He describes abandoning a modern life and traveling around North America on foot and living alone in a tent for several months at a time throughout his twenties. He testified that today, he continues to practice forms of hibernation and isolation and can spend many months living in a tent and being connected to nature.

[59] Mr. McCusker also described being actively involved in the Indigenous community for many years. He testified that he has close ties to many reserves in Ontario and that he has access to almost every single reserve in Ontario because of his status in the community.

[60] Mr. McCusker described himself as a very artistic person. In 2000 or 2001, he was offered a grant to attend the Vancouver Film School for a short period of time. He attended that school for approximately five or six months. It was there that he learned basic videography. However, he testified that he could not complete the program because the grant funding ended.

[61] He testified that he then went to New York City and worked and lived in Manhattan as a documentary film maker. He was visiting Nova Scotia when the events of September 11, 2001 ("9/11") occurred and decided to re-locate to Toronto.

[62] Mr. McCusker gave evidence that he taught himself graphic design and began his career in that industry in 2002. While in Toronto, he began working with a friend in his photography business. They created a company together known as Galaxie Media.

[63] Mr. McCusker worked in Galaxie Media for approximately four years, from 2002 to 2006. His friend and business partner taught him art direction and how to be a creative director during this period of time.

[64] Since that time, up until 2014, Mr. McCusker's primary employment has been in the field of graphic design, art direction and digital media. Mr. McCusker testified that between 2002 and 2014, he worked in a number of senior management positions, acting as a creative director or creative consultant at a number of companies, including, Galaxie media, Northlight Pictures, Pressure, 58ninety, LetoSoft Corporation, Riazu Incorporated, and Mayfair Clubs.

[65] Mr. McCusker described himself as being the driving creative and visionary force in many of these companies. He underlined his extensive skills and expertise at all of these companies during his testimony.

[66] However, most of these positions were contract positions. He testified that almost all of these positions ended due to a lack of sustainable projects, a lack of funding, or poor business decisions made by others involved in the business.

[67] Mr. McCusker then worked as a marketing manager for Mayfair Clubs from March 2014 to October 2014, one of his last periods of employment. According to his evidence, his contract ended at that company because they felt that he was not performing the duties to their expectations. Mr. McCusker testified that he was earning a net income of approximately $4,800.00 per month while employed at Mayfair Clubs.

[68] In 2007, Mr. McCusker created MixBlood Incorporated. He testified that he created this company to present his portfolio and to reduce what appear to be gaps in employment on his LinkedIn profile. It is his evidence that he is never made any money from this venture.

[69] Mr. McCusker LinkedIn profile was entered as evidence in these proceedings. According to the profile, Mr. McCusker describes himself as the Chief Creative Officer (CCO) of Mixed Blood Inc. since August 2007. He summarized his employment skills and experience as follows in his Profile:

"I deliver 15 years of creative leadership, brand and customer experience to any environment. Combining an award-winning portfolio with strategy and business acumen, I apply my knowledge towards next-generation digital experiences. Before I got into this business my portfolio caught the eye of the managing director of BBDO Calgary while still in high school. Instead of taking a seat in the art department, I embarked on a far bolder path as a creative entrepreneur. Over the past 25 years I have been performing in a variety of roles from writer, strategic, designer, Brander, developer, filmmaker, an advertiser."

[70] In the resume included in his LinkedIN, Mr. McCusker describes working with such companies as Coors Light, Heineken, Amsterdam Brewery, Carling, PUMA, Loblaws, Holt Renfrew, Danier Leather, L'Oreal, as well as a number of government and NGOs.

[71] As indicated, Mr. McCusker has not been employed since 2014, after he ended his employment with Mayfair Clubs. Is affidavit sworn June 12, 2017 he gives the following reasons for why he has not been employed since 2014:

"Obtaining and maintaining employment is very difficult for me. I find it very difficult to work for other people when my job is not culturally aligned. I cannot work when I feel like my cultural alignment is being affected and I'm being disconnected from my Indigenous values. It is for these reasons that I cannot work for most companies-it violates my value system and makes me feel violated by colonial culture…

The industry that I'm in is very competitive and despite my achievements there is age-based discrimination in this creative field. It has also been difficult for me to maintain and upgrade my skills-I have often had to pay subcontractors to do parts of my work for me."

[72] When asked to expand upon this in his testimony, Mr. McCusker testified that very few non-Indigenous companies today have ethical standards. It is his evidence that as an Indigenous person he experiences a spiritual and cognitive dissonance when he is forced to participate in traditional employment within Western society. If the employment opportunity is not associated or culturally aligned to his values, he feels disconnected from the employment and inevitably is not able to maintain it.

[73] However in cross-examination he described his experience at the Mayfair Clubs, a non-Indigenous tennis club in Toronto, to be a very positive employment experience.

[74] Regarding his efforts to find employment since 2014, Mr. McCusker gave the following evidence:

"I have not been in employed since 2014 despite my best efforts. I have applied for all the potential jobs that have been aligned with my cultural values. I do not have access to a phone. I've sent out email inquiries to people in my network. I also stop at Ontario works offices and apply for jobs. I also stop in at Miziwe Blik, the aboriginal employment and training center. I use their Wi-Fi to apply for jobs. I am not eligible for most of their training courses-I am too old."

[75] Mr. McCusker's job search efforts since 2014, as set out in his LinkedIn Profile as of January 1, 2018 was filed as an Exhibit in this proceeding. According to this exhibit, Mr. McCusker has applied for two positions in the past three years: BreezeMaxWeb: Online Media Solutions and the Oliver Agency. Both positions advertised were as Creative Directors. Prior to that, all of the other positions listed in the job search were for positions that Mr. McCusker has applied for more than three years ago.

[76] In addition, Mr. McCusker testified that in December of 2017, he applied for the position as the Director of Communications for Red Sky Performances, an Indigenous performance art company. His letter of application for that position was also entered as an exhibit in this proceeding.

[77] In his application for the position at Red Sky, Mr. McCusker describes himself as a "creative entrepreneur; mastering a wide swath of disciplines over a 25-year span. He has performed a variety of roles from writer, strategist, designer, art director, brander, developer, filmmaker and advertising creative director…he continues to work as a philanthropist, Indigenous theorist, special advisor, social activator, and artist whose work has received the support of arts councils and private collectors."

[78] Mr. McCusker has not applied for positions outside of his field. He gave no evidence of applying for any other positions since 2014, other than the three positions referred to above.

[79] Although Mr. McCusker does not have paid employment, he is very actively engaged in the Indigenous community and involved in a number of culturally relevant projects. He testified that he is involved in a national suicide prevention program with the Chiefs of Ontario, a program for Aboriginal foster children with Scugog First Nation, a program targeting Indigenous women with AIDS at McMaster University, and a program with the Chair of the University of Winnipeg related to infrastructure development. He described being highly regarded in the Indigenous community and that people were reaching out to him regarding these projects. None of these projects are currently producing income.

Mr. McCusker's Financial Disclosure

[80] Mr. McCusker provided the following financial information in support of his motion to change:

1. A sworn Financial Statement, dated June 6, 2017;

2. His income tax returns for 2010, 2011, 2012 and 2013;

3. Notices of Assessments dated 2011, 2012, and 2013;

4. A paystub from his former employer, Mayfair Tennis Courts Limited, for the pay period of June 22, 2014 to July 5, 2014.

[81] According to Mr. McCusker's most recent Sworn Financial Statement filed in this Motion to Change, he has no income or expenses. He testified that he is being financially supported by his partner, Ms Karen Dubin, with whom he resides and who has been covering all of his expenses since January of 2017. He owes significant debts to his previous landlord for unpaid rent, Bell Canada, Rogers, Toronto Hydro and the Canada Revenue Agency.

[82] He and Ms Dubin have had an on again, off again relationship for several years, but they most recently resumed cohabitation in 2017, after being apart for a period of time. Prior to that, Mr. McCusker lived in a variety of different places, and testified that in addition to rental accommodation, he has often lived in tents close to nature for periods of time. His most stable periods of residence appear to be with Ms Dubin.

[83] A review of the income tax returns and notices of assessment that were filed in this proceeding by Mr. McCusker indicate the following:

1. In 2010, Mr. McCusker reported that his gross business or professional income is $21, 843.00. He reported his line 150 on his tax return as $8,108.00, which appears to be his net professional income after deduction of business expenses;

2. In 2011, Mr. McCusker reported that his gross business or professional income was $28,300.00. His line 150 income was reported as $11, 259.50, after expenses;

3. In 2012, Mr. McCusker reported that his gross business and professional income was $49, 483.00. His line 150 income was reported as $19, 967.30, after expenses;

4. In 2013, Mr. McCusker reported that his gross business and professional income was $23, 684.07. His line 150 income was reported 150 as $12, 934.71, after deduction of business expenses.

[84] Mr. McCusker did not produce any supporting documentation or explanation for the business expenses that he claimed in deductions from his gross revenue between 2010 and 2013, as reported on his line 150 income. There was no evidence regarding how his net income was arrived at when considering his reported gross income.

[85] Mr. McCusker also produced one pay stub from Mayfair Clubs in Toronto, where he was employed as a marketing manager in 2014 for approximately five months, according to his testimony. The paystub indicated that his gross pay every two weeks for 80 hours was $2,884.62, or $6,250.00 monthly (assuming 26 pay periods). His net pay after tax was calculated at $4, 467.00 per month.

[86] Mr. McCusker did not produce his tax returns or his notices of assessment for 2014, 2015, and 2016. In his affidavit sworn June 6, 2017 and filed in this proceeding, he deposed: "I have not filed my taxes for the years 2014, 2015, and 2016. I understand that I have to file them in support of my Motion to Change."

[87] During this hearing, when asked, Mr. McCusker testified that he had filed his taxes with a community centre agency, but that they did not give him copies.

Dr. Suzanne Stewart

[88] Dr. Stewart is a researcher, professor and clinical psychologist who specializes in Indigenous mental health. At the request of Mr. McCusker's counsel, Dr. Stewart conducted a psychological assessment of Mr. McCusker for the purpose of this motion to change. The Report was completed in July of 2017 and filed as an exhibit in these proceedings, along with Dr. Stewart's Curriculum Vitae.

[89] Dr. Stewart's credentials and experience are extensive. She holds a Doctor of Philosophy in Counselling Psychology and a Masters of Arts in Counselling Psychology from the University of Victoria. She is licensed by the College of Psychologists of Ontario. She holds several academic appointments and she is currently the Director, Waakebiness-Bryce Institute for Indigenous Health, School of Public Health at the University of Toronto.

[90] Dr. Stewart also has a private practice as a psychologist where she provides counselling, psychotherapy and psychological assessments for adults and youth, with an emphasis in treating Aboriginal clients. She also works as a consultant in mental health for a number of Indigenous service providers and agencies. She has won numerous awards for her research, teaching and counselling and she has published extensively. She and is a member of the Ontario College of Psychologists, the Canadian Psychological Association, and the Native Mental Health Association of Canada, of note. She is considered a leading expert in the field of Indigenous mental health and clinical psychology.

[91] After a voir dire, Dr. Stewart was qualified as an expert in these proceedings to give opinion evidence regarding her psychological assessment of Mr. McCusker and the recommendations made by her. In particular, Dr. Stewart was asked to answer the following two questions in her assessment, according to the reason for the referral by the father's counsel, as set out in Dr. Stewart's report:

1. Does the patient have any mental health diagnosis?

2. Does the patient's mental health status interfere with his ability to find and keep work?

[92] Dr. Stewart administered a number of psychological tests as part of her assessment, including a Personality Assessment Inventory (PAI) and a Mental Status Exam, in addition to a clinical history interview. Dr. Stewart testified that she met with Mr. McCusker on two occasions to complete her assessment and clinical history interview.

[93] In her assessment, Dr. Stewart reported that Mr. McCusker "presented as a warm and friendly man with a strong sense of humour, highly articulate, and deeply intelligent. Within the history taking interview, he was forthcoming in most of his responses to interview questions, but he was hesitant to answer questions surrounding depression and suicide…Mr. McCusker also tended to be detailed in his reporting, especially once warmed up and prompted, but he was sometimes unable to provide concrete and specific examples of the endorsed symptom/behaviour."

[94] Dr. Stewart also observed that Mr. McCusker "demonstrated no difficulties with focus and concentration. Mr. McCusker responded appropriately with respect to emotionality and content throughout the interview." She observed that he "appeared to take appropriate care and time to complete the PAI questionnaire. He appeared to understand the instructions and did not ask any questions…Given Mr. McCusker's strong focus and concentration and detailed responses to his psychological functioning, test results and interpretations can be made confidently."

[95] During the clinical history interview, when asked about his employment history, Dr. Stewart reported that Mr. McCusker stated the following:

"He stopped working two years ago; he was working in communications and creative directions. His most recent job was for the Ontario Federation of Indian Friendship Centres for the "I am a Kind Man Campaign" developing the communications for the campaign. He has been writing and designing in Aboriginal communities, primarily as a career, for about ten years. He reported not working when he was living in a tent. He reported that he has never held a stable job; he created a company in 2002 and ran it until 2006. Otherwise, he described his employment history as unstable with short-term contracts or working jobs for three or four months at a time…

Currently, he has no desire to do anyone's work, he could "not go into an office and actually be there" when queried about the reason for this, he stated, "I don't know, I really don't have the words for this. I have not been working for two years, and it is not because I don't have opportunities, they come my way; they are not grand opportunities but they are there." When queried as to why he resists these opportunities, he stated that he has had times of feeling undervalued as an artist but that he does not feel that way anymore. He stated that he would rather be sleeping or doing something else other than working, and he acknowledges that this may be similar to depression…the despondency he feels and social withdrawal he engages in is worse or better at different times…"

[96] In assessing Mr. McCusker's current psychosocial functioning, Dr. Stewart reports the following at page 16 and 17 of her Report:

"Mr. McCusker stated that he has a vast social network; he has a lot of great wonderful friends. He commented that he socializes on a regular basis, which includes going to bars and art events. Recently, as his court case has become more challenging, he has reduced his social output because of lack of money as well as he is feeling to "stay insular" and that feels to be right to do.

With respect to his financial situation, Mr. McCusker reported that his partner currently supports him though he does a few projects. He stated that he has not received Ontario Works in about five years.

Mr. McCusker reported that one of his primary interests as social reform, and innovation in improving northern communities. He has spent the last few years investigating and researching everything from container farming to remote agriculture and looking at water treatment options. He considers his daughter to be his greatest achievement in life, since at age 18, a doctor told him that he was likely sterile and never have children and by 30 he was desiring and yearning for a child. When asked about his ongoing stresses in life, Mr. McCusker stated his court case and his relationship with his [current] partner are the biggest stresses…[his current partner] also feels that he struggles with time management, and he believes that he just does not want to manage his time and he has no desire to do this…

He identified his current coping skills as music, friends, being in nature. Mr. McCusker stated that his current goals and ambitions are to come out of this legal case in a good way and win his daughter back, and he feels this is a deeply personal goal, and at this time he is deep in thought over the last six months in terms of what he wants for himself in life right now…He explained his current lifestyle and views of life by stating, "How important is it for us as natives to fit into this paradigm? I think that Indigenous peoples have a unique perspective that others could benefit from in an enormous way. When my partner and I were in counseling with a traditional healer and I told him that him that we are at war with this society, and the paradigm of taxes, infrastructure, communications, technology is out of balance with the rest of life like free roaming caribou and precious water supplies, he understood that and understood me.""

[97] In Dr. Stewart's Summary and Recommendations, she states the following:

Mr. McCusker is a 46 year old man of Cree Ancestry who was referred for a psychological assessment for the purposes of gaining a better understanding of his psychological functioning and profile. An adoptive white family in an urban area of Alberta raised him. During his developmental years, both his parents were alcoholics, and his father was highly emotionally and sometimes physically abusive with him from early childhood until he was about 17. He was close with his mother and his extended family, including his adoptive grandparents. He never connected with his birth family yet as a young adult reconnected with his cultural identity and began doing what he called "Walking the Red Road" by abandoning a modern life and traveling around North America on foot and living in a tent, on a literal spiritual journey, sometimes for years or months at a time. Currently, he continues doing this intermittently and feels it connects him to his Indigenous identity by putting him in proximity of nature and thereby gives him a means to escape the best Bond and see, sadness and stress he often experiences in his life.

He first experienced symptoms of depression in early to middle childhood, and these intensified in adolescence; he coped with these by spending time in the forest and trees at night while his parents slept. In adolescence and early childhood, he continued experiencing symptoms of depression and began escaping them with drugs and alcohol. He has had a series of unstable and conflicted relationships with women, including the mother of his nine-year-old daughter and his current on-again off-again partner of five years.

Mr. McCusker has an unstable history of employment and did not complete high school. Elementary school was marked by experiences of emotional trauma due to his problematic relationships with teachers and school and child psychologists who all thought he was too smart and manipulative to be in school or do well there. Overall, he reported a history of emotional and physical trauma in childhood and significant illicit substance and alcohol use from adolescence to currently. His self-reported struggles with previous substances and alcohol use were consistent with the results of the Personality Assessment Inventory (PAI.)…

Mr. McCusker is currently unemployed and is supported financially by his partner. Mr. McCusker lacks interest and motivation in work and feels that his creativity is not currently inspired enough to allow him to follow through on any possible commitment to a job of any kind. His current main objectives are to settle a legal battle with his daughter's mother over child support payments and stabilize the conflictual relationship with his current partner…

In general, Mr. McCusker presents as a somewhat guarded and mostly psychologically stable man with some emotional difficulties. He has a history of emotional and physical abuse and significant substance/alcohol abuse. He has abstained from using illicit substances for a number of years and uses alcohol moderately for the last few years, but identified that he feels emotionally triggered to use alcohol in certain environments…. Mr. McCusker is likely to benefit from processing previous traumatic experiences, interpersonal relationship difficulties, and developing coping skills for the purposes of stress management and emotional regulation, especially regarding sadness and social withdrawal, and to maintain his sobriety from illicit substances and his control of alcohol.

[98] In answering the two questions for this assessment, Dr. Stewart's concluded the following:

"Does the patient have any mental health diagnosis?

Mr. McCusker has not been given a diagnosis of any DSM V condition at this time.

Does the patient's mental health status interfere with his ability to find and keep work?

While Mr. McCusker's symptomology does not currently meet the criteria of any DSM V diagnostic possibilities, he does display some mental health difficulties related to emotional regulation of sadness, lack of motivation, alcohol use and the associated behaviors of social withdrawal; these feelings and behaviors seem closely linked to what is going on in his close interpersonal relationships, particularly with his daughter, his ex-partner with the mother of his daughter, and his current partner with whom he cohabits...

Do these current events of the emotional overwhelm and social withdrawal interfere with disabilities to find and keep work? Yes they seem to, as it may be difficult to find and maintain employment when he feels driven to patterns of social withdrawal in order to regulate his emotions. Mr. McCusker appears fully aware of his choices in dealing with his emotions in these behaviors and believes these are warranted and culturally appropriate behaviors and choices, which in this context, may be difficult to pathologize in Western psychology models when considering colonialism and oppression of Indigenous peoples within the greater framework of the patient's life."

[99] In expanding upon her report and opinion during her testimony, Dr. Stewart testified that it was difficult to answer whether Mr. McCusker's current circumstances interfered with his ability to find and keep work. She acknowledged that she did not give a clear answer to that question in her report. She testified that her answer to that question "was not a yes or a no". She testified that it would be difficult for Mr. McCusker to find and keep work under the current way that he deals with his mental health issues. She testified that he needs to find new ways to cope with his emotions.

[100] Dr. Stewart is now Mr. McCusker's counselor and therapist and they are working to address a number of the recommendations she made in her Report, including her recommendation that Mr. McCusker could benefit from individual therapy to address unresolved trauma issues. At the time of her testimony, Dr. Stewart estimated that she had seen Mr. McCusker approximately nine to twelve times in weekly or bi-weekly therapy sessions. When asked about his progress, Dr. Stewart testified that she was "cautiously optimistic".

[101] Dr. Stewart also recommended that given Mr. McCusker's difficulties with employment and education, that he participate in a vocational assessment designed to assess his interest, motivations, and educational strengths and assets "to help him develop a clearer and more coherent career identity that is both operational in his life and culturally relevant". Dr. Stewart testified that she did not know whether such an assessment with a focus on a career that is culturally relevant, could be done in Toronto. At this time Mr. McCusker has not commenced such a vocational assessment.

[102] In questioning by the amicus, Dr. Stewart advised that she did not review any of the court documents in this proceeding or any other documents during the assessment process. She did not speak with the mother or the child. She frankly acknowledged that the assessment was largely based on the father's self-reporting. She met with the father on two occasions to complete the assessment.

[103] This concludes the summary of the evidence heard in this trial.

5. The Law and Governing Principles on a Motion to Change Support

[104] The father's motion to change support is governed by subsection 37 (2.1) of the Family Law Act, R.S.O. 1990, c. F. 3, as amended (the "Act"), and Rule 15 of the Family Law Rules, Ont. Reg. 114/99.

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

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.

[106] Section 37 (2.2) of the Family Law Act provides that a court making an order under subsection (2.1) above shall do so in accordance with the Child Support Guidelines. Section 14 of the Child Support Guidelines sets out the circumstances that may permit a variation in a child support order as follows:

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:

1. 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.

2. 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.

3. 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).

4. 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.

[107] The moving party on a motion to change child support needs to prove, on a balance of probabilities, 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 that would result in a different order.

[108] The onus is on the father, the moving party, to prove the change in circumstances or that evidence not available on the previous hearing has become available, thereby justifying the change in the child support order.

[109] In ascertaining whether a change in circumstances has occurred for the purposes of a motion to change child support, the court must consider whether the alleged change was "significant and long lasting; whether it was real and not one of choice." See Brown v. Brown, 2010 NBCA 5, Haisman v. Haisman, 1994 ABCA 249. Where a payor has been unable for relatively short periods of time in the past to make child support payments as they come due, this does not constitute a change in circumstances that meets the threshold for initiating a variation proceeding. See Haisman v. Haisman, supra.

[110] It is well settled law that, if income is imputed in the original order for child support, then the issue will generally be res judicata on a motion to vary or change support. See: Bemrose v. Fetter, 2007 ONCA 637. Although the court always has discretion with respect to the issue of res judicata and can consider fraud, fresh evidence, additional disclosure or issues of fairness, the principle of res judicata provides that generally, a matter cannot be re-litigated once it has been determined on its merits.

[111] The mere accumulation of arrears without evidence of a past inability to pay is not a change in circumstances. Present inability to pay does not by itself justify a variation order. It should only be granted if the payor can also prove a future inability to pay. Otherwise, the option is to suspend, or order repayment of arrears. The court must determine whether the income imputed to the father in the existing order should continue. See Haisman v. Haisman, supra.

[112] In the leading case of Trang v. Trang, 2013 ONSC 1980, Justice Alex Pazaratz explains how a court should consider motions to change child support when income has been imputed to a payor in the original order. Justice Pazaratz states the following at paragraphs 51 to 60 of his decision:

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

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

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

Or,

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

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

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

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

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

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

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

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

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

[113] As Justice Stanley Sherr explained in McDonald v. Profeiro, 2018 ONCJ 110 at paragraph 36 of that decision:

"The Trang decision does not stand for the principle that imputed income can never be adjusted retroactively on a motion to change and in fact, courts have adjusted support in accordance with a payor's actual income. See: Trembley v. Daley, 2012 ONCA 780; Fraser v. Fraser, 2013 ONSC 815. However, it does stand for the principle that when income is imputed at the original hearing, this amount is presumed to be correct and the onus will be on the person whose income was imputed to establish why this time their representations about their income should be accepted by the court. This will be a difficult task when income was imputed because the first court concluded that the person should have been working. As set out in Trang, it will not be a change in circumstances, absent new evidence, when the person is still not working when the motion to change is heard."

[114] Why is this important? Section 19 of the Child Support Guidelines provides that the court may impute to a parent "such amount of income … as it considers appropriate" for child support purposes and provides a non-exhaustive list of such circumstances. Section 19(1) (a) of the Guidelines provides that one of the circumstances include a parent or spouse that "is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs" of the parent or spouse.

[115] In the well-known and leading case of Drygala v. Pauli, the Ontario Court of Appeal has stated that 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 obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed.

[116] In Drygala v. Pauli, supra, the Court of Appeal stated that there is no need to find a specific intent to evade child support obligations before income is imputed. The payor is "intentionally under-employed" if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[117] When a career decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: McDonald v. Profeiro, supra, at paragraph 37, Riel v. Holland, at paragraph 23. As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi; Drygala, supra, para. 39.

[118] Fresh or new evidence not available at a previous hearing where income was imputed may be available at a motion to change support if the following four factors are established, as set out by the Court of Appeal in Bemrose v Fetter, 2007 ONCA 637, citing the four part test in R. v. Palmer:

1. The evidence should not be admitted if, through reasonable due diligence, it could have been adduced at trial.

2. The evidence must be relevant to a decisive or potentially decisive issue.

3. The evidence must be credible, or reasonably capable of belief.

4. The evidence must be such that, if believed and considered along with all the other evidence, it could have affected the result at trial.

[119] In Duffy v. Duffy, 2009 NLCA 48, the Newfoundland Court of Appeal summarized the general principles governing the issue of imputing income for child support purposes:

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

2. 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.

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

4. 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.

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

6. 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.

7. 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.

8. 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.

The Father's Claim for a Retroactive Downward Variation of Support and Arrears

[120] If a change in circumstances warranting a change in the support order is established by the father, the court still needs to assess if it should make a retroactive downward variation of child support.

[121] In Gray v. Rizzi, 2016 ONCA 152, the Ontario Court of Appeal set out the considerations for a court to apply when determining a retroactive downward variation of child support and arrears by a payor in a case in which income was imputed to him in the original support order.

[122] The court set out that where a payor seeks a retroactive decrease in child support, the 'D.B.S.' factors — such as taking into account the circumstances of the child, the conduct of the payor parent, the hardship of a retroactive award, and the reason for delaying in seeking a variation in support — remain relevant (par. 51). Although those factors require some minor alteration to suit circumstances where the payor's income has gone down, not up, the fundamentals still apply (par. 54). The court applied the process set out by Justice Deborah Chappel in Corcios v. Burgos as follows:

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

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

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

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

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

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

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

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

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

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

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

5. 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;

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

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

6. Should Gladue Principles be applied in Motions to Change Child Support involving Indigenous Payors?

[124] The court is unaware of any decision where Gladue principles have been considered or applied on a motion to change and reduce child support brought by an Indigenous person.

[125] In Ontario (Director, Family Responsibility Office) v. McMurter, 2017 ONCJ 947, the issue of whether Gladue factors should be considered in a FRO default proceeding seeking an order for committal was considered by Justice Wendy Malcolm. The court found that the application of Gladue was not required nor should it be considered in a default proceeding as to whether there should be an order of committal.

[126] In my view, for the reasons that follow, it is not appropriate to apply Gladue principles in motions to change child support by Indigenous payors. I agree with the submissions of the amicus on this point. However, I find that I can take judicial notice of whether Mr. McCusker's experiences as an Indigenous man has had an impact on his ability to pay child support. Although this may seem to be one and the same as applying Gladue, in my view, the legal distinction is an important one, as will be explained.

The Gladue Principles

[127] The "Gladue principles", as they have become known, arose from the Supreme Court of Canada's consideration of a sentencing principle codified under section 718(2) (e) of the Criminal Code that addressed the sentencing of Aboriginal or Indigenous offenders.

[128] Section 718(2) (e) of the Criminal Code R.S.C. 1985, c. C.46, as Amended, provides that a sentencing judge that imposes a sentence in a criminal case must take into consideration that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders." [Emphasis added.]

[129] In its seminal decision, R. v. Gladue, the Supreme Court of Canada determined that section 718(2) (e) is a remedial provision designed specifically to ameliorate the serious problem of the over-representation of Aboriginal or Indigenous persons in Canadian prisons, and its intention is to require judges to consider a restorative approach to the sentencing of aboriginal offenders.

[130] In particular, the Court directed the following at paragraph 66 of the decision:

"66 How are sentencing judges to play their remedial role? The words of s. 718.2(e) instruct the sentencing judge to pay particular attention to the circumstances of aboriginal offenders, with the implication that those circumstances are significantly different from those of non-aboriginal offenders. The background considerations regarding the distinct situation of aboriginal peoples in Canada encompass a wide range of unique circumstances, including, most particularly:

The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection." [Emphasis added.]

[131] The Supreme Court further held that "in all instances it will be necessary for the judge to take judicial notice of the systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders. However, for each particular offence and offender it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fit sentence." [Paragraph 83 of the decision].

[132] In 2012, the Supreme Court of Canada had an opportunity to revisit Gladue and explained and confirmed the following in R. v. Ipeelee at paragraph 60 of that decision:

60 Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society (see, e.g., R. v. Laliberte, 2000 SKCA 27). To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples. These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report, which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders. Bringing such information to the attention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender, as it is indispensable to a judge in fulfilling his duties under s. 718.2 ( e ) of the Criminal Code." [Emphasis added.]

The Evolution of Gladue Principles beyond Sentencing

[133] It is clear that Gladue principles have been expanded beyond the criminal sentencing process for several years now. Courts have applied Gladue principles in considering the unique circumstances of Indigenous persons in Ontario Review Board hearings for those found Not Criminally Responsible, in bail hearings, in civil contempt proceedings where a litigant is facing incarceration, in extradition hearings, in lawyer discipline hearings, and in parole board hearings.

[134] However, in all of the above cases, the Indigenous person's liberty is at stake or the person is facing punitive state action. As the Ontario Court of Appeal stated in The United States of America v. Leonard, a decision regarding a United States application for the extradition of two Indigenous Canadians to face drug charges in the United States:

"[85] The jurisprudence that I have already reviewed indicates that the Gladue factors are not limited to criminal sentencing but that they should be considered by all "decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system" ( Gladue, at para. 65 ) whenever an Aboriginal person's liberty is at stake in criminal and related proceedings. That category includes extradition. Indeed, the minister himself appears to have recognized that the reach of Gladue extends beyond sentencing when he agreed that the Gladue principles are relevant to the determination of whether a sought person's personal circumstances would make extradition contrary to s. 7 of the Charter." [Emphasis added.]

[135] In a motion to change child support brought by an Indigenous payor, the payor's liberty interest is not at stake, nor is the Indigenous payor facing punitive state action. Gladue principles are directed at remedying the serious problem of the over-incarceration of Indigenous persons in Canadian prisons or when Indigenous persons are facing punitive state action and their personal liberty is at stake.

[136] Paying child support is not a punitive state action that attracts Gladue principles. Paying child support does not trigger Mr. McCusker's liberty interest. Very importantly, there are other individuals whose interests are at stake here, in particular Indigenous children and Indigenous mothers.

[137] Paying child support is a responsibility and obligation of every parent, regardless of their gender, race, sexual orientation or cultural history. As Mr. McCusker is an Indigenous person, so is his daughter, Skyla. All children are equally entitled to child support. There is nothing in the Family Law Act, the Child Support Guidelines, or the Family Law Rules which states that the legal test on a motion to change should be different for Indigenous parents, or that Indigenous children should be treated differently when considering motions to change support. The legislation is designed to ensure that all children benefit from the support that they are owed when they are owed it.

[138] I agree with the submission of amicus that Indigenous children are equally entitled to benefit from the child support that they are owed, just as non-Indigenous children. Further, Indigenous mothers are equally entitled to receive child support for their children.

[139] Applying Gladue principles to motions to change child support involving Indigenous parents and children would result in creating a different legal framework for Indigenous parents that could have very negative consequence for Indigenous children. In my view, the differential treatment of Indigenous children in this context could amount to unfair discrimination.

[140] I further reject counsel for the father's argument that the Court must consider Gladue principles on the motion to change child support because the outcome of the motion to change could affect the outcome of the FRO committal proceedings, thereby affecting Mr. McCusker's liberty interests as he is facing incarceration.

[141] It may be the case that Gladue principles should be considered in the FRO enforcement proceedings where the Director is seeking a period of incarceration for non-payment of child support. I agree that Mr. McCusker's liberty interest is directly affected by the committal proceedings. However, I leave that determination to the judge hearing the motion for the warrant for committal. It is not my role nor is it legally correct for me to introduce the legal considerations on a committal proceeding into a motion to change child support.

Should the Court take Judicial Notice of the Impact of Systemic Inequalities or Systemic Racism on an Indigenous Person's Ability to Pay Child Support when determining Mr. McCusker's Motion to Change Child Support?

[142] Although, for the above reasons, I have rejected the introduction of a Gladue legal framework when considering the father's motion to change child support, I find that I can consider whether Mr. McCusker's experiences as an Indigenous man has had an impact on his ability to pay child support and whether the fresh expert evidence and assessment of Dr. Suzanne Stewart triggers a change in circumstance that warrants a review of the child support order and the income imputed to Mr. McCusker.

[143] In Willick v. Willick, a case that also concerned a child support variation, in a concurring opinion, Justice L'Heureux-Dubé J. wrote about the importance of understanding the social realities experienced by those most effected in the family law context. In taking judicial notice of certain social context facts, the Court explained:

1. Family law statutes do not exist in a vacuum;

2. The Court must have regard to the greater social context;

3. Social science research and socio-economic data are longstanding judicial tools in both Canada and the United States;

4. The law does not exist independently of other institutions. "Where social data and research are relevant to the creation of a rule of law, they take on a general character that goes far beyond the specific context in which they have been raised. They are part and parcel of the rule of law which they help to substantiate";

5. Social science research can "greatly aid a court by illuminating the social framework in which the facts of the particular case are to be adjudicated";

6. Courts have taken judicial notice of social science research in both Charter cases but also in non-constitutional contexts that raise questions of public policy; and

7. Where feasible, the parties should be accorded the opportunity to comment if the matter is susceptible to dispute.

[144] The majority opinion in Willick, written by Sopinka J., agreed with the contextual approach to statutory interpretation articulated by L'Heureux-Dubé J., but Sopinka J. did not find it necessary to decide "the thorny question of the use of extraneous materials, such as studies, opinions, and reports, and whether it is appropriate to take judicial notice of them and what notice to counsel, if any, is required."

[145] It is clear that the Supreme Court of Canada in R. v. Ipeelee does require the Court to "take judicial notice of such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples."

[146] Certainly, since Ipeelee, the Final Report of the Truth and Reconciliation Commission of Canada, completed at the request of the federal government in 2015, documented the devastating impact of the residential school system and the 'Sixties Scoop' on Indigenous families. The Report found that many intergenerational survivors experienced significant gaps in their health, education, and employment and that they continued to struggle with serious issues of depression and other mental health issues that affected their ability to work.

[147] Further, more recently, in applying Ipeelee to a child protection case, the Ontario Superior Court of Justice, sitting as an appellate court, held that it is appropriate to take judicial notice of the history of colonialism, displacement and residential schools in order to provide the necessary context for understanding and evaluating the case-specific information presented by counsel. See Windsor-Essex Children's Aid Society v. J.G.G., 2018 ONSC 4137 at paragraph 60 of the decision.

[148] As the above decision makes clear, the Court in Ipeelee was careful to state that "[t]hese matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case… " [Emphasis added.]

7. Application of the Law and Governing Principles to the Facts in this Case

[149] There was no evidence before me that Mr. McCusker's experience as an Indigenous person, and the impact, if any, of this experience was considered when determining his ability to pay child support at the original hearing.

[150] Although it is incumbent on me to take judicial notice of Mr. McCusker's experience as an Indigenous person and whether this interferes with his ability to pay child support, both counsel for Mr. McCusker and the amicus acknowledge that Mr. McCusker's identification as an Indigenous man in and of itself is not a basis to change the child support ordered.

[151] The question that I must consider is whether the evidence of Dr. Stewart's recent psychological assessment of Mr. McCusker and Mr. McCusker's testimony regarding his experiences as an Indigenous person supports a change in the amount of income imputed to Mr. McCusker for the purpose of paying child support.

[152] I find that Mr. McCusker has not discharged his onus, on a balance of probabilities, that the income imputed to him in 2015 and his ongoing monthly obligation to pay basic child support should be changed. Mr. McCusker has not presented sufficient evidence of changed circumstances which establishes that it is no longer necessary or appropriate to impute income to him in the amount determined under the existing order.

[153] I make this finding for the following reasons:

1. Although I accept that Dr. Stewart's psychological assessment is new or fresh evidence that was not available at the original hearing, and even if I accept that this evidence could not have been presented or discovered with diligence at the original hearing, Dr. Stewart's evidence does not demonstrate that Mr. McCusker is incapable of working, or that his mental health and his experience as an Indigenous man interfere with his ability to work. Indeed, Dr. Stewart's evidence was unclear and at times conflicting in that regard.

2. Dr. Stewart did not find that Mr. McCusker had any mental health diagnosis. Although she found him to display some mental health difficulties associated with earlier trauma and experiences which suggested barriers to employment, she could not say for certain that this interfered with his ability to find and maintain employment.

3. When asked directly during her testimony, Dr. Stewart frankly acknowledged that it was difficult to answer whether Mr. McCusker's current circumstances interfered with his ability to find and keep work. She acknowledged that she did not give a clear answer to that question in her Report. She testified that her answer to that question "was not a yes or a no".

4. Dr. Stewart found Mr. McCusker presented as a warm and friendly man "with a strong sense of humour, highly articulate, and deeply intelligent". He presented as a "mostly psychologically stable man with some emotional difficulties." He reported to her that he has "a vast social network" and "great wonderful friends." He was deeply engaged and focused during the assessment and he had no difficulty completing the psychological testing.

5. Although Dr. Stewart found some evidence of emotional difficulties and stated that it may be difficult for Mr. McCusker to find and maintain employment "when he feels driven to patterns of social withdrawal", Dr. Stewart also found "Mr. McCusker appears fully aware of his choices in dealing with his emotions in these behaviors and believes these are warranted and culturally appropriate behaviors and choices.."

6. It was further evident in reading Dr. Stewart's report that Mr. McCusker did not provide a full employment history to her. During this hearing, the father gave extensive testimony and evidence that between 2002 and 2014, he worked in a number of senior and management positions acting as a creative director or consultant. He testified that he was most often the driving creative force of these companies. Mr. McCusker detailed his extensive skills, high performance and industry expertise during his testimony.

7. In the resume included in his 'LinkedIN' profile, Mr. McCusker describes working with such companies as Coors Light, Heineken, Amsterdam Brewery, Carling, PUMA, Loblaws, Holt Renfrew, Danier Leather, L'Oreal, as well as a number of government and NGOs. Mr. McCusker also mentioned working or consulting for a number of leading companies in his testimony.

8. Mr. McCusker presented no other evidence of what has changed in his life since 2014. He has stopped working, but the evidence that I heard strongly suggested that this was a choice made by Mr. McCusker.

9. When explaining why he was not employed since 2014, Mr. McCusker testified that very few non-Indigenous companies today have ethical standards. He testified that as an Indigenous person he experiences a spiritual and cognitive dissonance when he is forced to participate in traditional employment within Western society. If the employment opportunity is not associated or culturally aligned to his values, he feels disconnected from the employment and inevitably is not able to maintain it. However in cross-examination he described his experience at the Mayfair Clubs, a non-Indigenous tennis club in Toronto where he was earning a projected income $75,000 annually, to be a very positive employment experience.

10. It is not reasonable for the father to only apply for culturally relevant, executive or management positions in his field when he has a child to support.

11. Mr. McCusker has not applied for positions outside of his field. He gave evidence that he only applied for three positions since 2014, as evidenced by his job search efforts filed as an exhibit in this proceeding and his application in December of 2017 as the director of communications for an Indigenous performing arts company.

12. It is not reasonable for Mr. McCusker to only apply for three positions since 2014 when he has a child to support.

13. When questioned by Dr. Stewart as to why he was not working, the father reported to her "it is not because I don't have opportunities, they come my way; they are not grand opportunities but they are there."

14. Although Mr. McCusker does not have paid employment, he testified that is very actively engaged in the Indigenous community and involved in a number of culturally relevant projects. He is involved in a national suicide prevention program with the Chiefs of Ontario, a program for Aboriginal foster children with Scugog First Nation, a program targeting Indigenous women with AIDS at McMaster University, and a program with the Chair of the University of Winnipeg related to infrastructure development. He described being highly regarded in the Indigenous community and that people were reaching out to him regarding these projects. None of these projects are currently producing income.

15. Although this is admirable work, it is not reasonable for the father to choose to work for no income when he has a child to support. The father's obligation to support his child takes precedence over his own interests and choices.

16. The father testified that his practice of social withdrawal and isolation, and being close to nature are essential to his well-being as an Indigenous person. These practices reflect an important form as medicine for him as an Indigenous person. The father can continue to engage in these important cultural and spiritual practices while still earning an income and supporting his child, as so many Indigenous parents do across Canada.

17. Mr. McCusker consented to the amount of income imputed to him in 2015. He was present and participated in the settlement conference. It is Mr. McCusker's evidence that he consented to the order because he is "conflict avoidant". There is no independent evidence of this. The father had been in litigious and high conflict litigation with the mother for more than three years at the time of the order to which he consented. Further, the evidence of his expert witness is that the father's "interpersonal style seems to be characterized as self-assured, confident, and dominant."

18. The amount imputed to the father in the existing order was reasonable given his good health, intelligence, skills, and employment history at the time the consent order was made. The father is an intelligent, capable, and able-bodied man. In 2014, less than one year before the existing order, the father was employed as a marketing manager at Mayfair Club and earning approximately $75,000.00 annually in a contract position, according his own evidence.

19. The amount of income imputed to Mr. McCusker in 2015 is now just barely above minimum wage, full-time employment. Mr. McCusker is capable of finding minimum wage employment. He is choosing not to do so.

[154] The court does not wish to minimize the trauma or emotional difficulties that Mr. McCusker has experienced as an Indigenous person. There may be other cases in which the impact of an Indigenous payor's experiences of racism, colonialism, intergenerational trauma and social isolation is a basis to vary an existing order for child support, but the evidence before me does not support a variation in the income imputed to Mr. McCusker for child support purposes.

Section 7 Expenses

[155] However, there is evidence to support a change in the ongoing section 7 expenses ordered by the court in 2015. Paragraph 2 of the original Order of Justice Cohen provides that the father shall pay $289.00 per month for the section 7 expenses of child care, being his proportional share of the total expense of $482.00. Paragraph 4 of the original Order provides that the mother shall deliver, on an annual basis, as applicable, any current information in writing about the status and amount of any expenses included in the Order.

[156] It is not disputed that the mother has not provided annual and ongoing disclosure of section 7 expenses. Ms Armstrong chose not to participate in this hearing, although perhaps for very understandable reasons given the length of these court proceedings and the impact of numerous court appearances on her employment. Nevertheless, there was sparse, if little evidence of Skyla's ongoing section 7 expenses since 2015 and whether she continues to be in daycare. Skyla is now almost eleven years old.

[157] There is some evidence that Skyla is now in receipt of almost a full bursary at the Linden School, where she was enrolled some time after the original support order. There is also evidence that Ms Armstrong's current annual income is $71, 869.44. Ms Armstrong has not sought contribution from Mr. McCusker for this expense. Further, based on the written materials that she did file for this hearing, she did not appear to be seeking ongoing section 7 expenses.

[158] There is no evidence that the mother provided the annual and ongoing disclosure necessary for the calculation of 7 expenses after that date, as required by the original order. The lack of evidence regarding the ongoing section 7 expenses is a change in the circumstances that warrants an adjustment to the ongoing child support and a re-calculation of the arrears owing. This change should take effect July 1, 2016, one year after the original order.

Arrears

[159] The father has only established a change in circumstances regarding the section 7 expenses. The court will only adjust that amount retroactively. The court will not reduce any other child support owed. The father did not provide a reasonable excuse for his delay in moving to change support. He engaged in blameworthy conduct by unreasonably prioritizing his own needs and failed to pay adequate support to Skyla. Any hardship that the father may experience due to the accumulated arrears can be addressed through a reasonable monthly payment arrangement, in accordance with the principles of Gray v Rizzi, supra.

[160] In reviewing the most recent Statement of Arrears filed as an exhibit in this hearing, the arrears are calculated at approximately $42, 881.00. Arrears are therefore re-calculated to July 1, 2016 by reducing the monthly amount for section 7 expenses owed ($289.00 monthly multiplied by 26 months or $7,514.00). The total arrears owing are therefore $33, 367.00, assuming that Mr. McCusker has not made any payments over the past twelve months.

[161] Given that Mr. McCusker has not been employed consistently for the past two years, it may take some time before he is able to make larger monthly payments towards the arrears owing. The Court will therefore exercise its discretion and reduce the monthly amount payable towards arrears to $150.00 per month. Mr. McCusker will be given a small grace period before these payments commence.

8. Final Order

[162] I make the following final order:

1. The father's motion to change the ongoing amount of child support of $245.00 per month based on an imputed income to him of $30,000.00 is dismissed. The father shall continue to pay ongoing child support for the child in the amount of $245.00 per month, based on an imputed income of $30,000.00 per annum. This monthly payment is due on the first of each month.

2. The father's motion to change the ongoing section 7 expenses under the existing support order is granted. The father's ongoing obligation to pay the child's section 7 expenses in the amount of $289.00 each month is terminated, retroactive to July 1, 2016.

3. The total arrears of child support are therefore adjusted and fixed at $35, 367.00, to be payable at a rate of $150.00 per month, commencing November 1, 2018, assuming that Mr. McCusker has not made any payments towards arrears or child support owing since August 1, 2017.

4. If the father earns more than $30,000.00 per annum, he shall immediately notify the mother of same, and no later than thirty days of this change in income. He shall provide proof of this income, including his three most recent pay stubs, to the mother.

5. A Support Deduction Order shall issue.

[163] The mother chose not to attend or participate in this hearing, however, she did retain counsel to file a Response to the father's Motion to Change and an Amended Response to the Motion to Change, both entered as exhibits in this hearing. If either party seeks costs, he or she shall file written submissions not exceeding three pages no later than October 15, 2018. This page limit does not include any offers to settle or bills of costs. Any response shall be filed by November 1st, 2018 and subject to the same page limits.

[164] Finally, I wish to thank counsel and amicus for their very helpful submissions and the case law provided.

Released: September 7, 2018

Signed: "Justice Sheilagh O'Connell"