Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 04 12 COURT FILE No.: Thunder Bay FO-19-0286-00

BETWEEN:

Kasia Spaczynska Applicant

— AND —

Maurice Bartley Respondent

Before Justice D.J. MacKinnon

Heard on April 1, 2022 Reasons for Judgment released on April 12, 2022

Kasia Spaczynska.......................................................................... Applicant not appearing S. Burkinshaw..................................................... counsel for the Respondent, M .Bartley

MacKinnon J.:

[1] Maurice Bartley brings this motion to change a support order made by Justice Scully on November 8, 2018 which provided that he would pay child support to Kasia Spaczynska for his child Izabela Grace Bartley born in September 2015.

[2] Although served with this motion, the recipient has failed to respond.

[3] In the earlier proceeding, Mr. Bartley failed to appear and had been noted in default. The court deemed him to have an income of $60,000 per year and based on that ordered $556 per month in child support commencing on December 1, 2018. The payor indicates that he was living in Thunder Bay at the time but that the recipient and court did not know that, otherwise the support would have been provisional under s.44 of the Family Law Act. The court did have an email address for Mr. Bartley although he says he did not become aware of the order until enforcement commenced by the Family Responsibility Office.

[4] The Order of Justice Scully also set out that arrears of support to November 30, 2018 were $24,872.05 payable at the rate of $200 per month. There was an order for contribution to s.7 expenses in the amount of $249.51 per month commencing December of 2018. There was an order for costs in the amount of $15,000.

[5] The payor admits that he has never made any voluntary payments. He did lose his driver’s license due to enforcement but has it reinstated.

[6] In his motion, the payor seeks to have the order of Justice Scully varied from the date of its inception to eliminate the arrears since that date. He also wishes to have the arrears order also rescinded. He wants a different support order going forward.

The Statutory Framework

[7] The Family Law Act in s.37 says:

Powers of court: child support

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

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

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

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

Limitation on applications for variation

(3) No application for variation shall be made within six months after the making of the order for support or the disposition of another application for variation in respect of the same order, except by leave of the court. R.S.O. 1990, c. F.3, s. 37 (3) .

[8] A variation cannot occur during the first six months of the order. If a variation is to be considered, there must be proof of a change of circumstances as set out in the Child Support Guidelines.

Retroactive Variations and Colucci

[9] The critical case directing an assessment of this motion is Colucci v Colucci 2021 SCC 24.

[10] In the Colucci case, a support order was made in 1997. In 1998, the payor requested that the recipient agree to a reduction of the support but did not provide any documentation to support his claim of a reduction in income. From 1998 to 2012, the payor was not involved with his children and made no voluntary financial disclosure or voluntary payments. In 2012 the children ceased to be eligible for support. In 2016, Mr. Colucci brought an application seeking a retroactive reduction of child support to May of 1997, and that any arrears be set in light of his current financial situation. He made various claims about his financial situation during the time of the accrual of child support arrears but provided little documentation to support his claims regarding his income.

[11] The Superior Court found that the enactment of the Child Support Guidelines was a material change in circumstances, and retroactively changed the support obligation of Mr. Colucci without consideration of the factors set out in the Supreme Court decision in D.B.S. v. S.R.G., 2006 SCC 37, 2006 SCC.37 (DBS). On appeal, the Court of Appeal stated that the motions judge had erred in approaching the issue of retroactive variation as one of the right of the payor, and that the motion of the payor should fail for the following reasons:

1. The onus is on the payor to prove that his non-payment of the support was for a valid reason;
2. The payor must explain his delay in bringing an application to vary;
3. Throughout the period of support, the payor was required to provide ongoing disclosure of his income;
4. He failed to produce evidence of his inability to pay the support while the arrears were accumulating;
5. The payor did not make any voluntary payments and was a reluctant payor.

[12] As a result, the Court of Appeal unanimously granted the appeal in favour of the recipient and Mr. Colucci remitted the matter to the Supreme Court of Canada.

[13] The Supreme Court found that the Court of Appeal was correct. It reinforced that a framework for determination of these matters must balance the rights of the child to be supported by the payor, the need for certainty of income for the recipient and the flexibility required when there has been a real and legitimate change in income of the payor. While the framework was being applied under the Divorce Act, the process applies to any applications for retroactive variation of child support.

[14] The framework sets out the following steps and principles for retroactive support variations:

1. The onus is on the payor to establish, as a threshold test, a material change of circumstances which is a decrease in income that is real, sustaining and not of choice.
2. If the threshold test is met, there is a presumption that the support would be varied to the point of effective notice to the recipient. Effective notice is when the payor communicated to the recipient, his need to reduce the support and the documentation to support his income change. If there is no effective notice, notice is when the formal proceeding notice was given to the recipient or even later when supporting documentation was provided to the recipient.
3. The date of retroactivity can be changed if it would be unfair by applying factors from the case of DBS, namely: i) the reason for the delay in applying, ii) the payor’s conduct; iii) the child’s circumstances, and; iv) hardship on the payor of no change or hardship on the recipient and child of a change.
4. If the court determines that a retroactive variation is justified, the calculation would be done based on the evidence of the annual income and the guidelines.

Applying The Law

[15] There are basically three requests by the payor:

1. Rescission of the arrears up to November 30, 2018 which were set in the Order of Justice Scully on November 8, 2018 in the amount of $24,872.05 payable at the rate of $200 per month;
2. Variation of the child support from the date of the Order of November 8, 2018 based on the annual income of the payor, and rescission of any accumulated arrears;
3. Variation of the ongoing child support.

[16] In regard to the first request, as I indicated at the hearing of this motion, this court cannot act as an appeal court of the order made in 2018 settling the arrears. The order was made after a full hearing in which the sitting Justice had the evidence from the recipient, and the payor chose not to participate or provide his material. In addition, even in this application, there is no income evidence provided by the payor up to the date of the order. For these reasons the request to rescind the arrears order of November 2018 is denied.

[17] The second request of the payor to vary the support ordered from the date of the order falls squarely into the Colucci framework.

Material Change in Circumstances

[18] It is difficult in this case to say that there has been a change of circumstances in the income of the payor since the making of the order, as he did not participate at that time or provide proof of his income in order to establish a realistic baseline. The deemed income was determined on the representations by the recipient as to his income, which was accepted by the sitting Justice to determine the deemed income of the payor.

[19] The Colucci case speaks to this situation of Mr. Bartley when the court says the following:

Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order (Gray, at paras. 33-34). This would “defeat the purpose of imputing income in the first place” and act as “a disincentive for payors to participate in the initial court process” (Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7 th ) 364, at para. 53 ). (para 63)

[20] In regard to the payor’s argument that the imputed income was incorrect and the arrears and support obligation that flowed from it are unfair, the court in Colucci made it clear that the failure to engage in the process of determining the payment due for his daughter fell on Mr. Bartley, and he cannot rely on this as a material change in his circumstances.

[21] The payor argues that the change of circumstances is that he has no to little income. He gives evidence that his annual incomes were zero in 2018 and 2019, $7,371.53 in 2020 and $13,155.62 in 2021. Only the income tax returns for 2020 and 2021 are provided by him.

[22] Asked how he lived on zero income, the payor through his counsel admitted that he lived with a woman who assisted him and that he worked “under the table”, that is, for unrecorded cash. The income in 2021 includes his estimate of $5,000 for this type of payment.

[23] The payor has worked as a bouncer and security person, and now works at a furniture location mainly doing repairs. He says that physical infirmity and government requirements for bouncers to be certified have made that job out of his reach.

[24] Mr. Bartley also has a number of medical conditions including neuropathy in his feet, sleep apnea and diabetes. He says that he recently fell on ice and broke bones in the tops of his hands, a most unusual injury, and that both hands are in casts.

[25] I am satisfied that there has been a change in his circumstances and that not all of it has been at his own choice.

Effective Notice

[26] Mr. Bartley says that he gave notice to the recipient of his wish to change the support order shortly after he became aware of the order. There is no documentation related to this nor any evidence about the financial information given to the recipient, even though he had a lawyer at the time. I cannot accept that event as effective notice.

[27] The only other event of notice appears to be when formal notice of this proceeding was given by the payor to the recipient, which was January 27, 2022, deemed served seven days later. I am willing to accept February 4, 2022 as the date of any formal notice and thus prior to the payment due on March 1, 2022. This would be the date of any change.

DBS Factors

[28] The factors set out in the Supreme Court decision of D.B.S. underline issues of fairness in the determination of whether there should be a retroactive variation of child support.

[29] Mr. Bartley does not give a reason for the delay in bringing an application to vary or motion to change the support. It seems that this motion was brought as a result of the enforcement actions of the Family Responsibility Office. The payor should have brought this matter forward firstly to the recipient, and if no agreement was reached, then to the court in order to relieve him of some of this responsibility, but he did not do so.

[30] The payor made no attempt to meet his obligation to pay support for his child. It is a fundamental of our system of social organization, that parents have a duty to support their children financially in a formal, predictable and fulsome manner, not in a haphazard approach based on the amount of expenditure that the parent thinks children deserve. The failure of Mr. Bartley to even show any dedication to Izabela by paying a regular amount for her support that he could, is to be read against him.

[31] The child’s circumstances are that she lives with her mother in Toronto Ontario. The earlier proceeding suggested that she was involved in various activities and attended daycare. There is no evidence that her care is deficient in any way. The payor questions whether the child is involved in any activities but has no evidence to the contrary. Due to the failure of the father to meet an obligation to support Izabela, it is clear that the mother has had to provide for the care and financial needs of the child herself.

[32] This leads to another consideration from DBS. What would be the impact on the recipient and the child and on the payor of a decision to vary the support or not?

[33] Without any voluntary payments, the FRO is capturing only funds from the income tax filings of the payor. Very little money is being paid. To reduce the arrears would have little effect on the recipient immediately, but on principle it would unfairly justify the non-payment by Mr. Bartley of any support. The payor has not been paying support or arrears and the only hardship to be suffered by him would be incarceration and perhaps the loss, once again, of his driver’s license.

Decision

[34] It is clear to me that Mr. Bartley is incapable, on a prospective view, to pay the support ordered on the basis of imputed income of $60,000 per year. He cannot return to the job of bouncer. However, he does have a driver’s license and is capable of working, albeit at the present time he has both hands in casts.

[35] The arrears set by the order of November 8, 2018 up to November 30, 2018 in paragraph four are not to be varied. This calculation was based on the income deemed by the court that applied up to the month of the order. The arrears were set. I am not going to change this arrears order especially as there has not been sufficient financial information in the pre-order period.

[36] Given the direction from the Supreme Court in Colucci, and even though that was a divorce case, the principles apply here. As such the date available for variation of the support is March 1, 2022, the support due day after service and formal notice of this matter on the recipient.

[37] Based on the evidence before me, I do not accept that the income of the payor has been zero or that his tax returns necessarily reflect his real income. He has given evidence that he works, “under the table” for cash at an untraceable level. I intend to deem an income for him as the evidence fails to convince me of the income he actually earns working each year.

[38] In my estimation, the payor should at least be capable of working a minimum wage job. I note that he says that the injury he suffered this winter has resulted in both hands being in casts. The time for recovery from this is unknown. In addition are the medical conditions he reports.

[39] A minimum wage job pays $15 per hour at 40 hours a week. The annual income for this pay would be $31,200 per year. However, in consideration of his medical conditions, his age and physical infirmities, I am setting his annual income at $25,000. This would result in child support of $199 per month commencing March 1, 2022 and continuing on the first day of each and every month thereafter.

[40] In regard to the arrears of support ordered by Justice Scully on November 8, 2018, I amend that order to reflect that the monthly payment by Mr. Bartley toward the arrears shall be $100 each month commencing on March 1, 2022 and continuing on the first day of each and every month thereafter.

[41] Due to the limited income of the payor, I stay the enforcement of the ongoing s.7 expense amount set out in paragraph four of the order.

[42] The Respondent was also ordered to pay costs of the proceeding in 2018 in the amount of $15,000. I cannot vary or change this order, but I will establish a payment schedule of $50 per month for this payment.

[43] Arrears of support which have accumulated between December of 2018 to the date of formal notice on February 4, 2022 shall be payable at the rate of $50 per month commencing June 1, 2022 and continuing on the 1 st day of each and every month thereafter.

[44] In total that means that each month the payor shall pay $399 toward his support obligations. As an incentive, and because the payor has a record showing no commitment to support, in the event that he fails to make three consecutive payments after today’s date, the full amount of arrears from November 2018 and February 28 2022 shall become due and owing.

[45] The order made today is as follows:

1. The Order of Justice Scully of November 8, 2018 is varied as follows:
2. Paragraph 4 – The Respondent payor shall have a deemed annual income of $25,000 and shall pay child support to the Applicant for the support of the child Izabela Grace Bartley born in September 2015, in the sum of $199 per month commencing on March 1, 2022 and continuing on the first day of each and every month thereafter;
3. Paragraph 4 – The Order for payment of special or extra-ordinary expenses is stayed effective March 1, 2022;
4. Paragraph 7 – This Order of arrears is varied to provide that the rate of payment shall be $100 per month commencing on March 1, 2022 and continuing on the 1 st day of each and every month thereafter;
5. Paragraph 13 – The payment of costs shall be repaid at the rate of $50 per month commencing on May 1, 2022 and continuing on the 1 st day of each and every month thereafter.
6. Arrears of support owing from December 1 st of 2018 to the date of this order, shall be paid at the rate of $50 per month commencing on May 1, 2022 and continuing on the 1 st day of each and every month thereafter;
7. In the event that the Respondent payor fails to pay his support or the arrears or costs payments for three consecutive months, the payment of all arrears and costs shall become due and owing forthwith.

Released: April 12, 2022