Hardayal v. Rasheed, 2023 ONCJ 339

ONTARIO COURT OF JUSTICE

DATE: 2023 06 05 COURT FILE No.: Toronto FO-10-00052817-0001

BETWEEN:

Kuntie Hardayal Applicant (Responding Party)

— AND —

Mohamed Imtiaz Rasheed Respondent (Moving Party)

Before: Justice Szandtner

Heard on: March 29, 2023 Reasons for Decision released on: June 5, 2023

Counsel: A. Rupchaud ………………………………counsel for the applicant K. Hardayal (applicant) V. Pohani.................................................... agent for the respondent M. Rasheed (respondent)

SZANDTNER J.:

Part One – Introduction

1This motion was about the respondent (the father) Mr. Rasheed’s motion issued April 6, 2022, to change the child and spousal support terms contained in the order of Justice Brownstone, dated February 23, 2011 (the existing order).

2The existing order was made after an uncontested hearing. The father’s annual income was imputed by Justice Brownstone at $75,000.00. He was ordered to pay child support of $680 per month for the parties’ one child L.R. (the child) starting on February 1, 2011. He was ordered to pay spousal support of $1500 per month to the applicant (the mother) Ms. Hardayal starting on February 1, 2011.

3On January 16, 2023, the case management judge, Justice Zisman made an order that spousal support payable to the mother by the father be terminated as of February 1, 2011.

4The father asked the court to fix his child support arrears at $19,704.00. He asked that ongoing support be paid at $192.00 per month, based on his annual income of $24,000.00.

5The mother asked the court to find that any retroactive adjustment should not be made beyond three years before the father’s application. She further asked that father’s child support owing should be based on an imputed income of $52,000.00 per year.

6The parties filed affidavits and financial statements as their direct evidence. They were both represented by counsel. They each provided supplementary oral evidence and their counsel cross-examined the opposing party.

7The issues for the court to determine are:

a) Has there been a material change in circumstances regarding the father’s income since the existing order was made?

b) If so, when is the presumptive start date that child support should be changed?

c) Should the court deviate from the presumptive start date when child support should be changed?

d) At what level should the court assess the father’s income in any year it determines that child support should be changed?

e) How should any support arrears owing be paid?

Part Two – Brief Background Facts

8The father is 49 years old. He works as a labourer for a home renovation company. He has two younger children with another partner. He is currently single.

9The mother is 39 years old. The child resides in her primary care. She has two younger children from another partner currently in her sole care.

10The parties cohabited and had one child together who was born in 2007 and is now six years old.

11The parties separated on October 1, 2009.

12The mother commenced an application on December 30, 2010. She sought spousal support, child support, custody of the child, and the ability to travel and obtain government documents without the consent of the father. The father was served with the application on January 12, 2011 in person by a process server. He did not file any documents. The mother proceeded on an unopposed basis for her final order.

13The existing order was made after an uncontested hearing. The father’s annual income was imputed by Justice Brownstone at $75,000.00. The father was ordered to pay child support of $680 per month for the parties’ child starting on February 1, 2011. He was ordered to pay spousal support of $1500 per month to the mother starting on February 1, 2011.

14The father did not appeal the existing order. He did not move to set it aside.

15The father issued the within Motion to Change on April 6, 2022.

16The father’s child support arrears owing as of April 1, 2023 are approximately $44,840.00.

Part Three – The father’s position and evidence

17The father’s evidence is that he became aware of the existing order in 2014. The father stated that he never earned the $75,000.00 annual income imputed to him by the existing order.

18The father’s evidence is that in or around September/October 2015 he and the mother attended at court to get the order changed at his request. He stated that the mother never completed the required forms and the change was not made. The father did not have the resources to hire a lawyer at that time.

19The father works as a labourer with a home renovator. He attached a letter from his employer Unlimited Design Inc. dated March 22, 2022 indicating that his current hourly wage is $25.00 per hour. The letter also indicates that before COVID he would work 40 hours per week. However, the letter states that due to COVID he could only expect 20 hours a week from this particular employer.

20The father claimed that he has health restrictions that prevent him from doing heavy lifting when his elbow pain escalates. He attached a note from a doctor dated March 15, 2022 as an exhibit to his affidavit. The exhibit consists of a handwritten paragraph from Dr. Oryema. The brief note reports simply that the father sought medical attention for elbow pain on three occasions in February/March of 2022. The doctor does not indicate if he is the father’s family doctor or was simply consulted on those three occasions.

21The father stated that he has helped the child financially since the existing order was made. He claims that he has paid on average the child directly $100.00 per month. He provided no evidence of these voluntary payments.

22The father’s evidence is that since February 2016, he has paid child support of $484.00 each month for his two other children. This is based, he said, on his annual income of $33,280.00. He attached as an exhibit the agreement with his subsequent partner to provide for their children dated February 22, 2016.

23The father provided his Notices of Assessment for the years 2016-2021.

24The father’s position is that his annual income during the period of the order and the child support owing is as follows:

Year	Annual Income (imputed)	Table support payable	Child support owing
2011	11,000	21.00	252.00
2012	11,000	21.00	252.00
2013	11,000	21.00	252.00
2014	11,000	21.00	252.00
2015	11,000	21.00	252.00
2016	29,294.00	239.00	2,868.00
2017	13,280.00	63.00	552.00
2018	38,211.00	338.00	4,056.00
2019	36,800.00	323.00	3,876.00
2020	28,311.00	238.00	2,865.00
2021	19,988.99	161.00	1,932.00
2022	24,000.00	192.00	2,304.00

25It is the father’s position that the total arrears owing by him is $19,704.00 less any payments that have been remitted to the Family Responsibility Office (FRO) or garnished by them.

26He is also seeking an order cancelling the costs order made on January 15, 2023 by Justice Zisman in the amount of $5,500.00.

27He seeks an adjustment of the statement of arrears to reflect any orders made.

Part Four – The mother’s position and evidence

28The mother stated that during their relationship the parties worked at Seawall Lounge, a restaurant located in Toronto. The mother worked for the father at the restaurant. It was her understanding that he owned and operated the restaurant.

29The mother witnessed the father counting cash earned at the restaurant on a weekly basis during their personal relationship and co-working relationship. She observed him counting cash amounts between $2,500 and $3,000 per week.

30The mother stated that she filed an application for custody and child support for the child in 2011 order to ensure that she maintained custody, received child support and that a predictable access schedule could be set.

31The mother states that the father failed to participate in the court proceeding. He did not attend court dates or file any documentation. The continuing record does not include an Answer or sworn Financial Statement from the father. The final order was made imputing income to him of $75,000.00 on an unopposed basis.

32The mother stated that in or around 2015 the father approached her to reduce the support payable. She attended the family court at 47 Sheppard Avenue East with the father. The mother refused to sign any consent to change the support order until she received the proof of income that she had requested. The mother was aware of the father’s frequent travel back to Guyana. Accordingly, she requested full disclosure of his financial information and proof of income from both Canada and Guyana. The mother’s evidence is that the father had the opportunity to consult with duty counsel on that day. He informed the mother that he was going to file an Appeal of Payment Motion.

33The mother was not served with any motion or financial documentation until the within Motion to Change was served on her on April 6, 2023.

34The mother stated that the father’s voluntary child support payments were minimal and only improved with the involvement of the FRO.

35The mother does not dispute that the father is no longer involved in the Seawall Lounge restaurant. She relies on the father’s employer’s letter to establish that he is capable of earning $25.00 per hour. This would generate a salary of $52,000.00 per year based on full time employment.

Part Five – The start date for any 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 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.

39Given the informational asymmetry between the parties, a payor’s success in obtaining a retroactive decrease will depend largely on the payor’s financial disclosure and communication. Indeed, effective notice in this context is only “effective” when there has been disclosure of the changed financial circumstances. At the stage of considering the D.B.S. factors, disclosure will once again be a key consideration in assessing whether the payor’s conduct operates to shorten or lengthen the presumptive period of retroactivity. See: Colucci, par. 74.

40In Colucci, the court discussed what constitutes effective notice when a payor seeks a retroactive decrease in income, writing the following at paragraphs 87 and 88:

87 It is not enough for the payor to merely broach the subject of a reduction of support with the recipient. A payor seeking a retroactive decrease has the informational advantage. The presumptive date of retroactivity must encourage payors to communicate with recipients on an ongoing basis and move with reasonable dispatch to formalize a decrease through a court order or change to a pre-existing agreement. The timing and extent of disclosure will be a critical consideration in ascertaining whether and when effective notice has been given and determining whether to depart from the presumptive date of retroactivity.

88 In decrease cases, therefore, courts have recognized that effective notice must be accompanied by “reasonable proof” that is sufficient to allow the recipient to “independently assess the situation in a meaningful way and respond appropriately” (Gray, at para. 62, citing Corcios, at para. 55; Templeton, at para. 51). This ensures that effective notice provides a realistic starting point for negotiations and allows the recipient to adjust expectations, make necessary changes to lifestyle and expenditures, and make informed decisions (Hrynkow v. Gosse, 2017 ABQB 675, at para. 13; Hodges v. Hodges, 2018 ABCA 197, at para. 10).

41A brief email will not put a support recipient sufficiently on notice of a need to reduce child support. Rather, specifics of the alleged change must be set out, along with sufficient evidence to support the legitimacy of the change. Additionally, payors need to be diligent in commencing a proceeding if the recipient will not agree to reduce the support obligation. See: Jonas v. Akwiwu, 2021 ONCA 641.

42If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. In all cases, hardship may be addressed by the form of payment. See: Michel, par. 124.

5.2 Has there been a material change in circumstances in the father’s income?

43The father states that there has been a material change in circumstances because he has not been earning, nor has he been capable of earning, the annual income of $75,000.00 that was imputed to him in the existing order.

44The 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.

Paragraph 1 of section 14 of the Child Support Guidelines (the Guidelines) reads as follows:

Circumstances for variation

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

15. 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.

45The court finds that the father has met this low threshold. The mother’s observations of the cash earned from the restaurant business was the basis for the $75,000.00 imputed income. It is not disputed by the parties that the father’s restaurant employment did not last and that his employment shifted to that of a labourer.

5.3 When is the presumptive start date for support to be changed?

46Colucci 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.

47The mother stated that the father asked her in 2015 to change the child and spousal support orders. The parties both describe coming to the courthouse to inquire as to how to proceed. It was the mother’s evidence however, that she would not consent to any change because she was not provided with adequate financial disclosure from the father.

48Colucci sets out that effective notice must be accompanied by “reasonable proof” that is sufficient to allow the recipient to “independently assess the situation in a meaningful way and respond appropriately”.

49The father did not provide any such proof to the mother. He provided no disclosure about his financial or medical circumstances to the mother. He simply sought her consent to the variation based on his request.

50Accordingly, the court finds that the father’s effective notice was only accompanied by reasonable proof of his claim to reduce support when he issued his Motion to Change in April of 2022 and filed his financial statement. Effective notice is the same date as formal notice in the circumstances of this case. Therefore, April 11, 2022, the date on which his motion to change was served is the presumptive start date to change the child support payable.

5.4 Should the court deviate from the presumptive start date to change support?

51The court must next determine whether it should deviate from the presumptive start date to change support. The factors the court must consider when deciding whether to depart from the presumptive date of retroactivity as established by D.B.S. They are as follows:

1. Reason for the delay in bringing the claim;
2. Conduct of the payor parent;
3. Circumstances of the child; and,
4. Hardship that may be caused by a retroactive award.

Reason for the Delay

52The father did not provide a compelling reason for his delay of 11 years in bringing his Motion to Change. His evidence is that he came to the courthouse in 2015 and spoke to duty counsel. He was therefore aware from at least that date that he could obtain assistance with commencing a motion to change. If he was in fact earning the $11,000.00 he claims at that time, he would have likely qualified for legal aid assistance.

53The father made no effort to follow through on his initial request to the mother to reduce arrears in 2015. He did not provide the mother with financial or medical evidence for her to assess his request to reduce support. He did not make any further effort to negotiate settlement with her. He did not bring a Motion to Change at that time.

Conduct of the Payor Parent

54The father did not provide disclosure to the mother when it was requested in 2015. He also failed to provide the mother with annual financial disclosure over the 11 year period governed by the existing order.

55Furthermore, over the 11 years in question, the father provided no evidence of voluntary payments in child support. This abject failure to support the child financially is clearly blameworthy conduct.

Circumstances of the Child

56The court finds that the circumstances of the child have been disadvantaged by the father’s failure to pay child support. The mother has by necessity assumed the entire financial responsibility for the child. The child did not have the benefit of the stability and opportunities that the financial support from two parents might have provided.

Hardship to be caused by a Retroactive Award

57The court recognizes that the accumulated arrears are a hardship for the father. However, he is the author of his own misfortune.

58Over the 11 years in question, the father has shown little interest in earning income and no interest in taking steps to improve his ability to earn income. He has not provided evidence that he has looked for full-time work. He has not retrained or gone back to school. This is in spite of the fact that he provided evidence that he has the financial support of his sisters.

59The father is an able-bodied man who has provided no evidence that his income earning was negatively affected by a disability.

60The court will address that hardship by ordering monthly payments of the arrears that he can afford.

61The court will not deviate from the presumptive start date of April 11, 2022 to change the child support order. 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

62Section 19 of the Guidelines permits the court to impute income to a party as it considers appropriate.

63The 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] 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] O.J. No. 453, (Ont. Fam. Ct.).

f) The receipt of ODSP or Workplace Safety and Insurance Board benefits is not sufficient proof of one’s inability to work for support purposes. See: Tyrrell v. Tyrrell, 2017 ONSC 6499. The court cannot take judicial notice of any eligibility requirements for ODSP. Nor can it delegate the important and complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria. See: Abumatar v. Hamda, 2021 ONSC 2165.

g) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.

h) The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli, [2006] O.J. No. 4142 (SCJ.). Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton, [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen, [2006] O.J. No. 2902 (SCJ).

i) Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.

j) Even if the court accepts that the party has health-related challenges that may impact their income earning capacity, it must consider the nature and extent of the impact and whether the party could work on a part-time basis or in a less demanding position. See: Bentley v. Bentley, 2009 CarswellOnt 562 (S.C.J.); Kinsella v. Mills, 2020 ONSC 4785.

k) 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.

6.2 Analysis

64The court finds the following facts that are relevant to a consideration of what income can be imputed (if any) to the father:

a) The father is a labourer working for the home renovation sector.

b) He is 49 years old.

c) He provided a letter from an employer who renovates homes. This employer reported that the father was paid at a rate of $25.00 per hour. The employer also reported that he was unable to provide the father with full-time wages.

d) The father provided a note from a doctor that reflected three visits in March/April related to his tennis elbow. No consultation notes for these visits are provided.

e) The father’s evidence is that he is provided a weekly allowance by his sisters.

f) The father is seeking the return of his passport to allow him to travel internationally to Guyana for a wedding.

g) The father provided his Notices of Assessment but admitted under cross-examination that he often earned cash income that was not reported to the Canadian Revenue Agency.

65The father’s medical evidence is wholly insufficient to ground any claim that he is unable to work full time due to this elbow issue. No diagnosis, prognosis, treatment plan or the impact on his earnings ability is provided in his medical disclosure. There is no indication that the tennis elbow would impact the father’s earning capacity.

66The father’s letter from his employer is useful in that it confirms his hourly rate as a labourer. It also is evidence that he has a reference to provide to other potential employers. The fact that this particular employer is unable to hire him full time in no way establishes that he would be unable to seek out construction work with a different employer.

67The father’s evidence that he often earned cash income makes his Notices of Assessment less credible to the court in terms of actual earnings during the periods in question. Moreover, his plans to travel internationally suggest that the extent of these cash earnings has not been fully disclosed.

68The court finds that the father is capable of earning $25.00 per hour and that there is no medical reason preventing him from working full time. The court finds that he could have found a different full-time job or a second part time job to generate 40 hours of employment a week.

69The court finds that the father should have (at the very least), been working full time at $52,000.00 per year starting on May 1, 2022. It will impute this income and will change the existing order accordingly.

70The guidelines table amount for one child at an annual income of $52,000.00 is a payment of $479.00 each month.

Part Seven – Payment of arrears

71This order will result in a reduction of child support arrears.

72The court will order that the father may pay the arrears at the rate of $150.00 each month. However, if he is more than 30 days late in making any ongoing or arrears support payments accrued after July 1, 2023, the entire amount of arrears then owing shall immediately become due and payable.

Part Eight – Conclusion

73A final order shall go on the following terms:

a) The existing order shall be changed to provide that, starting on May 1, 2022, the father shall pay child support to the mother of $479.00 each month. This is the guidelines table amount for one child based on an imputed annual income to him of $52,000.00.

b) The father may pay the outstanding support arrears at $150.00 each month, starting on July 1, 2023. However, if he is more than 30 days late in making any ongoing or arrears support payments accrued after July 1, 2023, the entire amount of arrears then owing shall immediately become due and payable.

c) Nothing in this order precludes the Director of the Family Responsibility Office from collecting support arrears from any government source (such as HST or income tax refunds) or from any lottery or prize winnings.

d) A support deduction order shall issue.

e) 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.

74If either party seeks costs, they may serve and file written submissions by June 23, 2023. The other party will then have until June 30, 2023, to respond in writing (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any offer to settle or bill of costs.