DATE: March 27, 2024 COURT FILE NO. D44256/22 ONTARIO COURT OF JUSTICE
B E T W E E N:
HANI CUMOR OLIVIA OPREA, DUTY COUNSEL for the APPLICANT APPLICANT
- and –
GULAID ABDI MOHAMUD NOT ATTENDING RESPONDENT
HEARD: MARCH 26, 2024
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
1On March 26, 2024, the court struck the respondent’s (the father’s) Answer/Claim due to his failure to attend two consecutive court dates. [1] The court proceeded with an uncontested hearing on parenting and support issues regarding the parties’ two children, ages 13 and 11 (the children).
2The court made final parenting orders that day. It granted the applicant (the mother) incidents of decision-making responsibility related to travel and documentation for the children and reasonable parenting time for the father on reasonable notice to the mother. The mother had previously been granted decision-making responsibility for the children on consent.
3The mother sought child support from the father retroactive to December 1, 2018. She also sought an order that the father maintain the children as beneficiaries on any extended health coverage he has available to him through his place of employment. The court reserved its decision on these issues. [2]
4The court relied on the mother’s Form 23C trial affidavit, her financial statement and the father’s financial statement in reaching this decision.
5The issues for the court to determine are as follows:
a) What is the presumptive start date for child support? b) Should the court deviate from the presumptive start date, and if so, when should support start? c) How much child support should the father pay the mother for each year he is required to pay support? d) What credits should the father receive for child support paid? e) How should any support arrears be paid? f) Should the father be required to maintain the children as beneficiaries on any extended health plan he has available to him through his place of employment?
Part Two – Brief background facts
6The mother is 44 years old. The father is 42 years old.
7The parties married in May 2009 and separated in May 2018. They were residing in Alberta when they separated.
8The children have lived with the mother since the separation.
9The mother and the children moved to Toronto in November 2018 and remain here.
10The father resides in Ft. McMurray, Alberta. He is employed as a coach bus driver.
11The mother issued this application on August 21, 2023.
12The father issued his Answer/Claim on October 25, 2023.
13The mother issued an amended application on December 6, 2023, adding a claim for the father to contribute retroactively to the children’s section 7 expenses.
14On December 19, 2023, the parties consented to a final order granting the mother decision-making responsibility for the children. They also consented to temporary virtual parenting time for the father and that the father pay the mother temporary child support of $1,126 each month, starting on January 1, 2024, based on his 2022 income of $77,130. [3] The father was represented by counsel at that time.
15On February 9, 2024, the father filed a Form 4 Notice to Act in Person.
16The father did not attend court on February 23, 2024. The court increased his temporary child support payments to $1,594 each month, based on an annual income of $110,000, subject to adjustment at trial. It also ordered him to serve and file specified financial disclosure by March 12, 2024.
17The father did not file any of the financial disclosure ordered. He did not attend at court on March 26, 2024.
Part Three – Start date for child support
3.1 Legal considerations
18The mother served her application on the father on September 16, 2023. Support since that date is prospective support and is presumptively payable. See: Mackinnon v. Mackinnon. The support claimed by the mother before that date requires a retroactive support analysis.
19The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act. This clause reads as follows:
Powers of court
(1) In an application under section 33, the court may make an interim or final order,
…….(f) requiring that support be paid in respect of any period before the date of the order;
20In Colucci v. Colucci, 2021 SCC 24 (Colucci), the court set out the framework that should be applied for applications to retroactively increase support in paragraph 114 as follows:
a. The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.
b. Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.
c. Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.
d. The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.
e. Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
21This framework in Colucci addressed a request to retroactively increase the support contained in an order or an agreement. Courts have found that this framework should also be applied, with necessary modifications, for an original request for retroactive support.
22In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors [4] will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 25. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines. See: L.S. v. M.A.F., 2021 ONCJ 554; M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189; M.K. v. K.M., 2022 ONCJ 424; T.B. v. O.T., 2023 ONCJ 35; V.S.B. v. B.L.O., 2022 ONCJ 506; Mohamoud v. Farah, 2023 ONCJ 103.
23Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel - par. 25.
24Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so. See: Michel – par. 132.
25Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S. - par. 97.
26The first step in the retroactive support analysis is to determine the presumptive start date of support. This will be the date when the mother gave effective notice to the father, provided this date is not more than three years before the date of formal notice.
27Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair. See: D.B.S. - par. 121.
28The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness). See: Michel - par. 36.
29In Michel, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty.
30In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support. See: Michel, par. 121.
31A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, par. 113.
32Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. See: Michel, par. 86.
33In Michel, the court, at paragraph 86, set out what might be understandable reasons for delay in a support recipient coming to court as follows:
a) Fear of reprisal/violence from the other parent. b) Prohibitive costs of litigation or fear of protracted litigation. c) Lack of information or misinformation over the payor parent’s income d) Fear of counter-application for custody. e) The payor leaving the jurisdiction or the recipient unable to contact the payor parent. f) Illness/disability of a child or the custodian. g) Lack of emotional means. h) Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement. i) Ongoing discussions in view of reconciliation, settlement negotiations or mediation. j) The deliberate delay of the application or the trial by the payor.
34Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.
35Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., par. 106.
36Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award. See: Michel, par. 119.
37There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child. See: Michel - par. 123.
38The fact that a child did not have to suffer hardship because of their custodial parent’s sacrifice is not one that weighs against making a retroactive support order. Rather, the recipient parent’s hardship, like that of a child, weighs in favour of the retroactive support award and an enlarged temporal scope. See: Michel - par. 123.
39If 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.
40While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid. See: Michel - par. 125.
41The retroactive support analysis equally applies to claims for section 7 expenses. See: Smith v. Selig, 2008 NSCA 54, 56 R.F.L. (6th) 8 (NSCA); Hetherington v. Tapping, 2007 BCSC 209 (BCSC), Surerus-Mills v. Mills; Kovalchuk v. Kovalchuk, 2023 ONCJ 355.
3.2 What is the presumptive start date for support to start?
42The first step in the Colucci framework is to determine the presumptive start date for support.
43The mother deposed that she frequently sought child support from the father, starting immediately after they separated.
44The court finds the mother gave the father effective notice of her request for increased support in June 2018.
45However, the Supreme Court in Canada in Colucci set out that the presumptive start date for support cannot be more than 3 years from the date of formal notice.
46The date of formal notice to the father was September 16, 2023, when he was served with the application.
47The court finds that the presumptive start date for support is September 16, 2020 – three years before the date of formal notice.
3.3 Should the court deviate from the presumptive start date for support?
48The second step in the Colucci framework is to determine if the court should deviate from the presumptive start date for support.
49The mother seeks a deviation back to December 1, 2018.
50The mother provided understandable reasons for not coming to court earlier as follows:
a) The father would block her and the children from any communication with him if she asked him for support. This was upsetting to the children. The mother feared the father would punish the children by not seeing them if she started a court application. b) In 2019, the mother told the father she was going to start a court application for child support. Both of their families became involved. The mother deposed that within their cultural and religious beliefs it was shameful to go to court over these issues. She did not want to bring shame to their families. The father agreed to pay child support of $500 each month but soon stopped making payments. c) She feels humiliated seeking child support from the father. d) The father never advised her of his increases in income. She had no basis to evaluate whether she should come to court to seek increased support. e) In 2023, the parties’ families became involved again when the mother told the father she would start court proceedings.
51The father has engaged in blameworthy conduct as follows:
a) He has seriously underpaid child support based on his annual income since 2018. b) He has acted manipulatively by refusing to speak to the children if the mother raised the child support issue. He has played on her sense of shame and guilt to avoid his child support obligations. c) He did not advise the mother of his annual increases in income. d) He has not complied with the court’s financial disclosure order. An adverse inference is made against him.
52The circumstances of the children were seriously disadvantaged by the father’s failure to pay appropriate child support. The mother deposed that:
a) She and the children have been on public assistance. b) She had to incur significant debt on her credit cards to support the children. She had to incur bankruptcy. Her credit score was ruined. c) She has had to reach out to her adult children and her family for financial support to meet the children’s basic needs. d) She cannot afford a computer for the children to do their homework. e) She cannot afford to buy the children new clothes they need. f) She has been unable to afford to enroll the children in extra-curricular activities. g) The family cannot afford to eat out much or spend much on entertainment.
53The retroactive support order sought by the mother might cause the father some hardship. However, he has no other financial commitments and according to his financial statement he spends over $1,300 each month for vehicle expenses, $1,500 each month for groceries and meals outside the home and $500 each month for alcohol and tobacco. He can afford to pay retroactive support if reasonable monthly payments are ordered.
54The mother and the children will suffer hardship if a retroactive support order is not made. The mother is in debt. The children require tutoring. The mother and the children barely have enough money to meet their most basic needs.
55The court notes that in her Form 23C trial affidavit the mother claimed support arrears of over $46,000. This affidavit was served on the father. He chose not to contest this or to come to court.
56The court finds that it is just in these circumstances to deviate from the presumptive start date. The start date for support will be December 1, 2018, as requested by the mother.
Part Four – Quantification of support accrued
4.1 Table child support
57The third step in the Colucci framework is to quantify child support for each year the court orders it to be paid. In this case, the court must determine the table child support the father should pay pursuant to the Child Support Guidelines (the guidelines) and his contribution to the children’s special and extraordinary expenses (section 7 expenses) pursuant to section 7 of the guidelines.
58The father did not produce evidence of his 2018 and 2019 incomes. He provided evidence that his 2020 income was $44,408. The court will impute this income to the father for 2018 and 2019, as requested by the mother. The monthly guidelines table amount for two children at this income was $644. For this 25-month period, the table support accrued was $16,100.
59The father’s income in 2021 was $85,361. The monthly guidelines table amount for two children was $1,249. The table support amount accrued for 2021 totals $14,988.
60The father’s income in 2022 was $77,135. The monthly guidelines table amount for two children was $1,126. The table support accrued for 2022 totals $13,512.
61The mother asked to assess the father’s ongoing and 2023 income at $110,000. However, the best evidence of his 2023 and current income is a pay stub he filed for the period ending September 30, 2023. This showed a year-to-date income of $53,852 less $765 for union dues for a total of $53,087. This projects to an annual income of $70,783. This is the income the court will use for support purposes for 2023 and on an ongoing basis. The monthly guidelines table amount for two children is $1,031. The support accrued for 2023 totals $12,372.
62The total table support accrued from December 1, 2018 until December 31, 2023 was $56,972.
63Starting on January 1, 2024, the father shall pay the mother table child support of $1,031 each month.
4.2 Section 7 expenses
4.2.1 Legal considerations
64The mother seeks an order that the father contribute towards the children’s retroactive and prospective section 7 expenses in proportion to the parties’ incomes.
65The relevant provisions of the guidelines regarding section 7 expenses are as follows:
7 (1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least of $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities.
7 (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
7 (3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
66Unlike section 3 of the guidelines, which presumptively provides for the table amount of child support, an order for section 7 expenses involves the exercise of judicial discretion. See: Park v. Thompson, 77 O.R. (3d) 601, (Ont. C.A.).
67In Titova v. Titov, 2012 ONCA 864, the court set out the following framework for determining a party’s contribution to a child’s section 7 expenses:
a) Calculate each parties’ income for child support purposes. b) Determine whether the claimed expenses fall within one of the enumerated categories of section 7 of the guidelines. c) Determine whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” d) If the expenses fall under paragraphs 7 (1) (d) or (f) of the guidelines, determine whether the expenses are “extraordinary” as defined by subsection 7 (1.1) of the guidelines. e) The court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits. f) The court determines the proportions that each party should contribute to the expenses, with the guiding principle being that the expenses will be shared in proportion to their incomes.
68The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, supra.
69Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount. See: Ebrahim v. Ebrahim; L.H.M.K. v. B.P.K., 2012 BCSC 435, [2012] B.C.J. 593 (SCJ); Simone v. Van Nuys, 2021 ONCJ 652.
4.2.2 Section 7 expense analysis
70The mother is seeking a contribution to the children’s tutoring expenses. The children began tutoring in June 2022.
71The court finds that tutoring is an eligible section 7 expense. It is necessary and reasonable for the children. The older child has an Independent Education Program due to his special academic needs. The court finds that the parties should share the section 7 expenses in proportion to their incomes.
72The mother paid $1,740 for tutoring in 2022. She was in receipt of public assistance that year. The father’s proportionate share of the expense was $1,427.
73The mother paid $2,400 for tutoring in 2023. The mother started working part-time as a personal support worker in 2023. The father’s proportionate share of this expense was $1,680.
74The total amount of section 7 expenses accrued until December 31, 2023 was $3,107.
75The mother has been spending about $200 each month for tutoring in 2024. The father’s proportionate share of this expense is $140 each month (70%). Starting on January 1, 2024, the father shall be required to pay section 7 expenses to the mother of $140 each month.
Part Five – Calculation of arrears and payment
76The total amount of table support and section 7 expenses accrued between December 1, 2018 and December 31, 2023 was $60,079 ($56,972 plus $3,107).
77The court accepts the mother’s evidence that the father paid child support in the amount of $17,590, up until the end of 2023. [5]
78The court finds that the father owes the mother child support arrears of $42,489 as of December 31, 2023.
79To address any potential hardship, the court will permit the father to pay the support arrears over approximately five years. The order will permit him to pay them at the rate of $700 each month, starting on May 1, 2024. However, if the father is more than 30 days late in making any ongoing or arrears support payments, the entire amount then owing shall immediately become due and payable.
Part Six– Extended health coverage
80The mother seeks an order that the father maintain the children as beneficiaries on any medical, dental or extended health plan he has available to him through his place of employment.
81The court has no information whether the father has such a plan. However, if he does have one, the children should be covered under it. This is a reasonable request in the children’s best interests. This will be for the provision of necessities for the children and will assist in preventing them from becoming or continuing to be public charges, as set out in subsection 34 (2) of the Family Law Act. [6]
Part Seven – Conclusion
82A final order shall go as follows:
a) The father owes the mother child support arrears of $42,489 as of December 31, 2023, as calculated in this decision. b) The father may pay the child support arrears at the rate of $700 each month, starting on May 1, 2024. However, if the father is more than 30 days late in making any ongoing or arrears support payments, starting on May 1, 2024, the entire amount 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 income tax or HST/GST refunds), lottery or prize winnings or inheritances. Any arrears collected in this manner shall not affect the $700 each month the father is required to pay towards the support arrears. d) Starting on January 1, 2024, the father shall pay the mother $1,031 each month for child support. This is the guidelines table amount for two children based on an annual income of $70,783. e) Starting on January 1, 2024, the father shall also pay the mother $140 each month for his share of the children’s section 7 expenses. f) The father shall be credited for any child support paid since January 1, 2024, but only as reflected in the records of the Family Responsibility Office. g) The Family Responsibility Office is requested to adjust its records in accordance with this decision. h) The father shall provide the mother by June 30th each year with complete copies of his income tax returns and notices of assessment. i) A support deduction order shall issue. j) The father shall irrevocably maintain the children as beneficiaries on any medical, dental or extended health plan that he has available to him through his place of employment and shall provide the mother with details of the plan and proof of the children’s coverage within 30 days of any request. This shall continue as long as each child is eligible for child support. k) The father is to sign any documentation required authorizing the mother to make claims for the children directly to his insurer.
83The court thanks the Family Law Service Centre who assisted the mother with her paperwork and duty counsel who assisted her in presenting her case at court.
Released: March 27, 2024
Justice Stanley B. Sherr
1The father was put on notice after he missed the first court date that the return date was peremptory on him, and if he did not attend, his Answer/Claim would be struck and the mother would be permitted to proceed with an uncontested trial.
2The court also ordered the father to pay the mother’s costs of the hearing of $1,500, as requested by her.
3The Province of Alberta table amounts are used throughout this decision as the father resides there. The definition of table in subsection 2 (1) of the guidelines sets out that if the parent against whom an order is sought ordinarily resides elsewhere in Canada, the table set out in the Federal Child Support Guidelines for the province or territory in which the parent ordinarily resides at the time of the application is used (see clause (b)).
4See: D.B.S. v. S.R.G., 2006 SCC 37; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. These factors are:
- Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
- The conduct of the payor parent.
- The circumstances of the child.
- The hardship that the retroactive award may entail.
5The mother set out the payments by year in her Form 23C trial affidavit.
6These are the criteria that permit the Ontario Court of Justice to make this order.