DATE: October 3, 2022 COURT FILE NO. D60650/13 ONTARIO COURT OF JUSTICE
B E T W E E N:
RUKSHANA DAUD NOT ATTENDING APPLICANT
- and -
RAFAEL MANN JARED PERSAUD, duty counsel, assisting the RESPONDENT RESPONDENT
HEARD: SEPTEMBER 29, 2022
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
1This uncontested trial was about the respondent’s (the father’s) motion to change the support terms contained in the court’s order dated August 6, 2014 (the existing order).
2The existing order was made after a trial. The father’s annual income was imputed by the court at $41,249. He was ordered to pay child support of $601 each month for the parties’ two children, starting on September 1, 2014.
3The father has asked the court to reduce his child support payments to $300 each month starting on January 1, 2016. He also asked that his support obligation for the parties’ eldest child terminate as of March 1, 2020.
4The father proposes to pay support arrears, once adjusted, at the rate of $100 each month.
5The mother attended at the First Appearance Court on April 14, 2022. She had not filed a Response to Motion to Change. The case was adjourned for a case conference.
6The mother attended the case conference scheduled for June 27, 2022. She had still not filed any responding materials. The court adjourned the case conference and gave the mother a further 30-day extension to file her responding materials.
7The mother did not attend at the case conference held on September 2, 2022. She had still not filed any responding material. She was found in default. A hearing date was set for the motion to change to be heard. The mother was notified of the hearing date.
8The mother did not attend at this hearing. The court proceeded to hear the father’s motion to change. The father gave oral evidence, in addition to his affidavits and financial statements previously filed. He was questioned by the court and by duty counsel, who provided him some assistance.
9The issues for the court to determine are:
a) Should child support be terminated for the eldest child, and if so, when?
b) Has there been a material change in circumstances regarding the father’s income since the existing order was made?
c) If so, when is the presumptive start date that child support should be changed?
d) Should the court deviate from the presumptive start date when child support should be changed?
e) At what level should the court assess the father’s income in any year it determines that child support should be changed?
f) How should any support arrears owing be paid?
Part Two – Brief background facts
10The father is 42 years old. The mother is 41 years old.
11The parties’ relationship ended in 2013.
12The parties have two children. C.M. is 19 years old. S.M. is 15 years old.
13The children lived with the mother after the parties separated.
14In March 2020, C.M. went to live with his paternal grandparents. He remains there. S.M. continues to live with the mother.
15On April 19, 2013, the mother brought her application in this court for decision-making responsibility for the children and child support.
16The father claimed during that proceeding that he was earning annual income of $28,000. He deposed that he worked for the Office Installation Group and for All-for-One Construction.
17On July 28, 2014, the court made final parenting orders. The court stayed the father’s parenting time claim as he had been non-compliant with temporary orders.
18On August 6, 2014, a trial was held on the support issues. Income was imputed to the father and the existing order was made. The father was ordered to provide annual financial disclosure to the mother. He was also ordered to pay the mother costs of $1,800.
19The father moved to lift the stay of his parenting time claim in February 2017. The court lifted the stay and ordered that the father would have supervised parenting time with the children once he served and filed his Form 35.1 affidavit and paid the intake fees for the parenting time supervisor. He was ordered to pay the mother’s costs of $600.
20The father did not ask to change the child support order at that time.
21The father missed the next court date. He had not complied with the preconditions to start parenting time and had not paid any costs. The court again stayed his parenting time claim until he complied with the court order and brought costs into good standing. The father was ordered to pay a further $400 in costs to the mother.
22The father has never moved to lift the stay.
23The father issued this motion to change support on February 25, 2022. He served his materials on the mother on March 3, 2022.
24On June 27, 2022, the court made an order for the father to serve and file financial disclosure. He partially complied with this order. He did not provide a job search list, records of employment or documentary proof of his 2022 income.
25The father filed a Statement of Arrears from the Family Responsibility Office with his originating materials that indicated that he owed child support of $18,174.62 to the mother as of February 1, 2022. An updated Statement of Arrears was not filed. The father believes that the arrears are now over $19,000.
26The Statement of Arrears indicated that the father kept support in good standing until May 1, 2018. His arrears began rapidly accumulating after July 1, 2019. He did not make a voluntary support payment again until December 14, 2020.
Part Three – The father’s evidence
27In his motion to change, the father deposed that he has been on social assistance since 2016. He provided income tax summaries showing annual income as follows:
2016 - $0 2017 - $8,777 2018 - $8,976 2019 - $8,976 2020 - $23,682 2021 - $21,221
28The father testified that he has completed one year of college in Business Administration. He said that after leaving college he has had various jobs in customer service and in construction. He said that he has done general labour and renovation work.
29The father stated that he was involved in criminal activity after the existing order was made. He said that he worked sporadically – a day here and a day there.
30The father was involved in a car accident in 2017. He said that he had some neck and back problems for a while. He received a personal injury settlement of $21,423 on July 19, 2022. His personal injury lawyer’s letter sets out that this was entirely for the father’s pain and suffering – not for loss of income. The father said that he has since paid off three loans totalling $9,000 and has invested the balance of the settlement in a TFSA.
31The father said that he has not worked in 2022. He testified that he does some day trading and has made about $500 this year.
32The father said that he hoped to be able to work soon, but he wants his child support obligations determined first.
Part Four – Termination of support for C.M.
33The court accepts the father’s evidence that C.M. left the mother’s home in March 2020 and has not returned to her care. C.M. has continuously resided since March 2020 with the father’s parents.
34The court found the father to be very candid and open in presenting his evidence, even when it was to his disadvantage. It had no reason to disbelieve his evidence about C.M.’s living arrangements. Also, the mother did not contest that C.M. has been out of her care since March 2020, despite having been provided with opportunities to do so.
35The existing child support order regarding C.M. will terminate as of March 31, 2020.
Part Five – The start date for support adjustment
5.1 Legal considerations
36The father’s motion to change support is governed by subsection 37 (2.1) of the Family Law Act which reads 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.
37The powers of the court on a motion to vary a child support order are very broad. The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis. The court's authority with respect to arrears is similarly broad and includes the power to rescind the arrears and interest, either entirely or in part, or to reduce the amount of arrears payable. See: Meyer v. Content, 2014 ONSC 6001.
38The child’s interest in a fair standard of support commensurate with income is the core interest to which all rules and principles must yield. A fair result that adequately protects this interest will sometimes lean toward preserving certainty, and sometimes toward flexibility. See: Colucci v. Colucci, 2021 SCC 24, par. 4 (Colucci).
39In Michel v. Graydon, 2020 SCC 24, the Supreme Court of Canada made the following observations about retroactive support that are germane to this case:
a) Courts must also turn their minds to other forms of marginalization in the courtroom. The gendered dimensions of poverty at different times mirror or obscure its intersections with race, disability, religion, gender modality, sexual orientation and socioeconomic class. The judiciary must take these differences into account and give them their due weight in considering the tests at issue. In the end, a system that can account for the social dynamics which act to impoverish certain members of society over others, or to prevent them from accessing the courtroom and reclaiming their rights, is a fairer system for all (par. 101).
b) The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (par. 121).
c) Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (par. 25).
40The Supreme Court of Canada set out the framework for deciding applications to decrease support retroactively at paragraph 113 in Colucci as follows:
(1) The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.
(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.
(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.
(4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.
(5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
5.2 Has there been a material change in circumstances in the father’s income?
41The father states that there has been a material change in circumstances because, since the beginning of 2016, he has not been earning the income that was imputed to him in the existing order.
42The threshold for a person to establish a material change in circumstances in their income is fairly low. See: Retroactive Support after Colucci, by Professor Rollie Thompson, 40 CFLQ 61.
43Paragraph 1 of section 14 of the Child Support Guidelines (the guidelines) reads as follows:
Circumstances for variation
For the purposes of subsection 37 (2.2) of the Family Law 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:
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.
44The court finds that the father met this low threshold. He had a motor vehicle accident in 2017. The court accepts that the father’s injuries from this accident partially affected his ability to earn the annual income imputed to him in the existing order.
5.3 When is the presumptive start date for support to be changed?
45Colucci sets out that the presumptive start date to change support should be the date of effective notice, but that date should not be more than three years before the date of formal notice.
46The father conceded that he did not provide the mother with effective notice of his claim to reduce child support prior to March 3, 2022, when he served her with his motion to change materials (the date of formal notice). He said that he did not speak to the mother as he did not feel that she would take the matter seriously.
47The father also did not provide the mother with annual financial disclosure as required in the existing order which would have permitted her to meaningfully assess the situation.
48Accordingly, the presumptive start date to change support is March 3, 2022.
49The court must next determine whether it should deviate from the presumptive start date to change support.
50The father did not provide an understandable reason for his delay in bringing his motion to change. He said, “I can’t really give a good explanation as to why”. He did not raise the issue when he brought the matter back to court in February 2017 regarding parenting issues. He said that he had approached the Family Responsibility Office a year or two before starting this motion to change and they had told him to go back to court.
51The father engaged in blameworthy conduct, particularly after he stopped regularly paying support after July 1, 2018. He failed to pay any voluntary child support from July 1, 2019 until December 14, 2020. By his own evidence, he earned $23,682 in 2020 and $21,221 in 2021. He also did not provide annual financial disclosure to the mother.
52However, the most serious blameworthy conduct is that the father received $21,423 in July 2022. Instead of making a meaningful payment towards his support arrears he preferred the interests of himself and his creditors. He should have put his child support responsibility first.
53The court received no evidence of any disadvantage to the circumstances of the children arising from the father’s failure to pay child support.
54The father will not suffer hardship if support is not reduced retroactively. He has $14,777 in his TFSA, according to his financial statement sworn on September 14, 2022. This should satisfy the arrears that will remain owing once they are adjusted, as set out below.
55The court also considered that if the court had decided to make any retroactive adjustment to child support because of the father’s injuries, it would have been a modest one.
56The court will not deviate from the presumptive start date of March 3, 2022 to change support. It finds that this result is not unfair in these circumstances.
Part Six – Change to the existing order
6.1 Legal considerations for imputing income
57Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.
58The jurisprudence for imputation of income sets out the following:
a) 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. See: Drygala v. Pauli, 2002 ONCA 41868, [2002] O.J. No. 3731(Ont. C.A.).
b) The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:
(i) Is the party intentionally under-employed or unemployed?
(ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?
(iii) If not, what income is appropriately imputed?
c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.).
d) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
e) 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, 2000 ONSC 22560, [2000] O.J. No. 453, (Ont. Fam. Ct.).
f) The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 ONCA 26573.
6.2 Analysis
59The court finds that the father has been deliberately unemployed or underemployed since 2016 for the following reasons:
a) He admitted to making little effort to seek employment despite being able to work in customer service and construction occupations.
b) He struggled to provide evidence of job search efforts at trial.
c) He did not provide a job search list as required.
d) He said that he was waiting for his child support obligations to be straightened out before actively looking for work.
e) He provided no records of employment setting out why he was no longer working for his previous employers.
f) He said that he has only looked for construction jobs. He has not applied for any retail jobs. He admitted that he could work at a Tim Horton’s or a similar business.
60The court finds that the father provided a partial excuse for his unemployment or underemployment. The court accepts that his neck and back pain from his motor vehicle accident partially affected his ability to do physical work. The father did not exaggerate the extent of the injuries. He said that it had some impact on his ability to do physical work for a while. He did not say that he could not do any work or customer service work. If the court had chosen to retroactively adjust child support, it would have been a modest adjustment.
61This leaves the question of what income to impute to the father from the presumptive date to change support. The father provided no evidence of any medical issues that have impaired his ability to work since that date. He has experience in customer service and construction work. He could work in a retail job or as a server.
62The court recognizes that the father has been out of the workforce for a long time. Some adjustment should be made to the imputation of his income to reflect that this will impair his ability to earn income.
63The court finds that the father should be earning more than just an annual minimum wage income ($31,200). The court will impute the father’s annual income at $35,000, starting on March 1, 2022, for support purposes.
Part Seven – Payment of arrears
64The guidelines table amount for one child at an annual income of $41,249 is $372 each month.
65The guidelines table amount for one child at an annual income of $35,000 is $304 each month.
66This order will result in a reduction of the support arrears in the amount of $7,643, calculated as follows:
From April 1, 2020 to February 28, 2022 23 months @ 229 per month ($601-372) = $5,267
From March 1, 2022 8 months @ $297 per month ($601-304) = $2,376
Reduction of arrears = $7,643
67The court was not provided with a current Statement of Arrears. This order will reduce the outstanding arrears to somewhere in the range of $12,000, perhaps a bit less, based on the last Statement of Arrears filed. The Director of the Family Responsibility Office will be asked to adjust its records in accordance with this order.
68The father asked to pay his remaining arrears at $100 each month. This is unacceptable. He has failed to responsibly meet his child support obligations. He received over $21,423 in July 2022 and preferred himself and his creditors to his child support obligations. He has sufficient funds in his TFSA to pay the outstanding arrears and still have some funds remaining for himself.
69The father will be required to pay the adjusted amount of child support arrears in full within 15 days. The mother has waited long enough to receive the support that the father should have been paying all along.
Part Eight – Conclusion
70A final order shall go on the following terms:
a) Child support for C.M. shall terminate as of March 31, 2020. Accordingly, starting on April 1, 2020, the existing order is changed to provide that the father shall pay the mother child support of $372 each month for S.M. This is the guidelines table amount for one child, based on his imputed annual income of $41,249.
b) Starting on March 1, 2022, the existing order is changed to provide that the father shall pay the mother child support of $304 each month for S.M. This is the guidelines table amount for one child based on the annual income imputed to the father of $35,000.
c) A support deduction order shall issue.
d) The Family Responsibility Office is requested to adjust its records in accordance with this order.
e) The father shall pay the full amount of the adjusted child support arrears still owing (approximately $12,000) within 15 days.
f) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year.
g) The father shall immediately notify the mother when he obtains any employment, provide her with the name and address of his employer and his first three pay cheques from the employer within 14 days of receipt.
71Court staff are to send a copy of this endorsement to the Family Responsibility Office Legal Department, to the attention of Diane Gillies, to facilitate the enforcement of this order.
72Court staff are also requested to expedite preparing and issuing this order. Copies are to be sent to the parties and to the Family Responsibility Office.
73The court thanks duty counsel, Mr. Persaud, for providing the father with assistance at this hearing.
Released: October 3, 2022
Justice Stanley B. Sherr