Court File and Parties
DATE: October 30, 2024 COURT FILE NO. D40247/20 ONTARIO COURT OF JUSTICE
B E T W E E N:
NICOLE DRUMMOND APPLICANT
ARON DAVID, for the APPLICANT
- and –
ANIL RICHARDSON RESPONDENT
ACTING IN PERSON
HEARD: OCTOBER 28, 2024
JUSTICE S.B. SHERR
Reasons for Decision
Part One – Introduction
1This hearing was about the applicant’s (the mother’s) motion to change the child support terms contained in the June 2, 2021 order of Justice Carole Curtis (the existing order) and the respondent’s (the father’s) motion to change the parenting time terms in the existing order respecting the parties’ 6-year-old daughter (the child).
2The existing order was made on consent. The material terms the parties seek to change are as follows:
a) The father shall have parenting time to the child in the mother’s discretion, to be arranged in writing.
b) The father shall pay child support of $256 each month. This is the Child Support Guidelines (the guidelines) table amount for one child, based on the father’s agreed upon annual income of $30,000.
c) The father shall provide the mother with annual financial disclosure within 30 days of the order’s anniversary date.
3The mother seeks to impute the father’s annual income at $70,000. She asks for him to pay her guidelines table support at this income retroactive to January 1, 2022. She also asks for an order that the father pay his proportionate share of the child’s special and extraordinary expenses pursuant to section 7 of the guidelines (section 7 expenses).
4The father’s position at trial was that he pay guidelines table support based on an annual income of $37,000, starting on November 1, 2024. He agreed to pay a proportionate share of the child’s 2024 track and field and swimming expenses. He opposed the mother’s claim for retroactive child support.
5The father seeks alternate weekend parenting time from Saturdays at 10 a.m. to Sundays at 8 p.m. The mother submitted the father failed to establish a material change in circumstances and the parenting time terms in the existing order should not be changed.
6The parties both testified and were cross-examined. The father called two additional witnesses who testified and were cross-examined.
7The issues for the court to determine are:
a) Has there been a material change in circumstances affecting or likely to affect the best interests of the child regarding her parenting time with the father?
b) If so, what parenting time orders are in the child’s best interests?
c) Has there been a material change in circumstances regarding the father’s income since June 2, 2021?
d) If so, when is the presumptive start date that child support should be changed?
e) Should the court depart from the presumptive start date, and if so, when should the change in child support start?
f) How much child support should the father pay for every year from the start date support is changed? In particular, what, if any, income should be imputed to him each year for the purpose of the child support calculation?
g) What amounts should the father contribute to the child’s section 7 expenses?
h) How should any support arrears be paid?
Part Two – Background facts
8The mother is 29 years old. The father is 40 years old.
9The parties cohabited from September 2017 until June 2019.
10The child is the only child the parties had together.
11The child has always resided with the mother.
12The mother issued an application for parenting and support orders on February 1, 2020.
13The court ordered on January 29, 2021 that the mother shall have sole decision-making responsibility for the child.
14The existing order was made on consent on June 2, 2021. [1]
15The mother issued her motion to change on September 18, 2023. The father filed his response to motion to change on December 20, 2023.
16On June 5, 2024, Justice Curtis organized the process for this hearing.
17The parties agree the father has had only one brief visit with the child since June 2023.
18The father has paid the support ordered in the existing order.
Part Three – Assessment of the parties’ evidence
19Neither party was a credible or reliable witness on the parenting issues. The mother was credible on the financial issues. The father was not credible or reliable on them.
20The mother was angry and argumentative when questioned on parenting issues. She often failed to listen to questions and instead attacked the father’s character.
21The mother claimed the father had only seen the child one to three times since 2021 and was uninterested in having a relationship with the child. This was not true. The father produced on his phone six photographs he took over six months in 2022 of the child and him together.
22The mother claimed to be open to the father having parenting time whenever he wanted, provided he gives her notice and the parenting time does not conflict with the child’s schedule. The evidence informed the court otherwise. It revealed the mother has little respect for the father’s relationship with the child and she has created barriers to him exercising his parenting time. She has blocked his calls. She sent him abusive text messages. In December 2022, she was angry at him and dumped gifts he had bought for the child at his place of business. It became apparent to the court she would arbitrarily restrict his parenting time when she was angry at him.
23The mother had a poor memory of dates and events, at times mixing up the years of events.
24The father’s credibility was even poorer. He exaggerated his involvement with the child. He claimed to have exercised alternate weekend parenting time with the child up until June 2023, yet could only produce on his phone six photographs of the child with him in 2022, and none after September 2022. [2]
25The evidence informed the court that the father has taken a lackadaisical and irresponsible approach to exercising his parenting time with the child. He did not respond to some invitations by the mother to see the child. He wants to exercise parenting time when it is convenient for him. He did not come to court to enforce or change his parenting time when it was denied by the mother. He only did so when the mother moved to increase his support payments.
26The father demonstrated little understanding at trial of the child’s needs or best interests. It was about what has been done to him.
27Text messages revealed the father to also be an angry and difficult person to deal with when he does not get his own way. He sent inappropriate messages to the mother.
28The father has seriously underreported his income to the Canada Revenue Agency (the CRA) and this court. His evidence about his income was implausible and often contradictory. This will be set out in more detail below.
29The father claimed the mother did not inform him of the child’s extra-curricular activities or seek payment from him. This was false. The mother provided evidence of emails she sent to the father regarding this.
30Neither party showed any insight into how their conduct has contributed to the father’s ruptured relationship with the child. They externalized all blame to the other parent.
31The court treated the evidence of both parties with considerable caution and primarily looked to external evidence to make findings of fact.
Part Four – Parenting time
4.1 Legal considerations – material change in circumstances
32Section 29 of the Children's Law Reform Act (the Act) provides the statutory authority for changing a parenting order. It states:
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child
33In L.M.L.P. v. L.S., 2011 SCC 64, the Supreme Court stated that the change must be substantial, continuing and that “if known at the time, would likely have resulted in a different order.” The Supreme Court stated that it must limit itself to whatever variation is justified by the material change of circumstances.
34On a motion to change, the court has the option of restricting changing the existing order to address a specific issue, while maintaining its integrity. See: Elaziz v. Wahba, 2017 ONCA 58.
4.2 Analysis of material change in circumstances
35The mother submits there has not been a material change in circumstances affecting or likely to affect the best interests of the child. She claims the father has shown no interest in exercising his parenting time. She wants to maintain discretion over it.
36The court disagrees and finds there has been a material change in circumstances affecting the best interests of the child that warrants changing the parenting time order.
37The mother conceded the present parenting time order is not working for the child. The child loves the father and wants to see him. It is not happening due to the conflict between the parties. Maintaining the status quo is not in the child’s best interests.
38Inherent in any order granting one party discretion over the other party’s parenting time is that the discretion will be exercised reasonably. The court finds the mother has not exercised this discretion reasonably. Her emotions and anger with the father cloud her judgment about his parenting time with the child.
39It is in the child’s best interests to remove the mother’s discretion over the father’s parenting time and make a structured parenting time order.
4.3 Best interests – legal considerations
40Subsection 24 (2) of the Act provides that the court must give primary consideration to the child’s physical, emotional and psychological safety, security and well-being in determining best interests.
41Subsection 24 (3) of the Act sets out a list of factors for the court to consider to determine the child’s best interests.
42Subsection 24 (6) of the Act states that in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
43Section 28 of the Act sets out the types of parenting orders the court can make.
44Subsection 33.1 (2) of the Act addresses the importance of the parties protecting children from conflict. It reads as follows:
33.1 Protection of children from conflict
(2) A party to a proceeding under this Part shall, to the best of the party’s ability, protect any child from conflict arising from the proceeding
45The list of best interests considerations in the Act is not exhaustive. See: White v. Kozun, 2021 ONSC 41; Pereira v. Ramos, 2021 ONSC 1736. It is also not a checklist to be tabulated with the highest score winning. Rather, it calls for the court to take a holistic look at the child, his or her needs and the persons around the child. See: Phillips v. Phillips, 2021 ONSC 2480.
46The court must ascertain a child’s best interests from the perspective of the child rather than that of the parents. See: Gordon v. Goertz, 1996 SCC 191. Adult preferences or “rights” do not form part of the analysis except insofar as they are relevant to the determination of the best interests of the child. See: Young v. Young, 1993 SCC 34; E.M.B. v. M.F.B., 2021 ONSC 4264; Dayboll v. Biyag, 2022 ONSC 6510.
47The best interests of the child have been found to be met by having a loving relationship with both parents and that such a relationship should be interfered with only in demonstrated circumstances of danger to the child’s physical or mental well-being. Moreover, the child has a right to have contact with both parents. See: Klymenko v. Klymenko, 2020 ONSC 5451.
48The party who seeks to reduce normal access will usually be required to provide a justification for taking such a position. The greater the restriction sought, the more important it becomes to justify that restriction. See: M.A. v. J.D., [2003] O.J. No. 2946 (OCJ); Dayboll v. Biyag, 2022 ONSC 6510.
4.4 Best interests – analysis
49The father seeks an order for parenting time on alternate weekends from Saturdays at 10 a.m. to Sundays at 8 p.m.
50The mother’s position on parenting time, if her discretion was removed, was less clear. At one point she indicated she had no objection to the father having the child on alternate weekends, if it did not interfere with her work schedule or the child’s activities and she had appropriate notice. She later changed this position to seek a gradual increase in the father’s parenting time, starting with telephone calls, provided her pre-conditions were met.
51The mother acknowledged the father was an involved parent when the parties resided together.
52The mother also acknowledged the child loves the father and wants to see him.
53Except for his parenting inconsistency, the mother had no significant parenting concerns about the father.
54It was apparent throughout the trial that the parties are unable to communicate in a respectful manner with each other. Some of the text communications between them were vile. They both presented at trial as rigid individuals who were unable to listen to or consider the other’s viewpoint.
55The parties spent little time discussing the child’s best interests. Their focus was on each other.
56It is important to protect the child from adult conflict.
57The court finds the father has had little parenting time with the child since the existing order was made, and virtually no parenting time since June 2023. He has not been involved with the child for a meaningful part of her life. He shares a large portion of the blame for this.
58The court is skeptical about the father’s commitment to the child. He has put his own needs and anger with the mother ahead of the child’s need to have a consistent relationship with him. It is not in the child’s best interests for him to come and go from her life. She needs the father to be consistent and reliable.
59The child also needs to get to know her father again. It is in her best interests to start with day parenting time. This will increase to single overnight parenting time for a few months and then increase to two overnights on his weekends a few months later.
60The court needs to be sensitive to the mother’s schedule in structuring parenting time. The mother goes to school Monday to Friday at Durham College. She works 12-hour shifts on the weekends. She has different shifts with different hours. The mother said she gets her schedule six weeks in advance.
61The mother has done an admirable job supporting herself and the child, with little assistance from the father. She has been the child’s caregiver. She goes to school full-time. She works full-time. Her work ethic is an excellent example for the child. However, the court cannot permit her to use her work schedule or the child’s activities as an excuse to restrict the father’s parenting time. She needs to make reasonable arrangements to accommodate the child’s parenting time with the father.
62The court finds it is in the child’s best interests to order day parenting time with the father twice each month on Saturdays from 10 a.m. to 5 p.m. for the next few months to build back the relationship between the father and the child. The mother shall select the parenting time weeks once she gets her work schedule and shall notify the father.
63Starting in February 2025, the father’s parenting time will expand to Fridays, with pickup at 5 p.m. until Saturdays at 5 p.m., twice each month. Starting in May 2025, the visits will expand to Fridays with pickup at 5 p.m., until Sundays at 5 p.m. Again, the mother shall select the parenting time weeks once she gets her work schedule and notify the father.
64The father will be responsible for transporting the child from and to the mother’s home.
65It is important that parenting time take place. The father must notify the mother by email at least 72 hours before the scheduled visit that he will attend. Otherwise, the visit will not take place.
66The mother asked for a condition that the father be required to take the child to her activities during his parenting time. The court will not make that order. This will be up to the father. He has limited parenting time and his relationship with the child at this point takes priority to the child’s activities.
67Once overnight visits begin, the father must advise the mother where the child will be sleeping and allow her to have one telephone call with the child during the visit.
Part Five – The mother’s motion to change child support
5.1 Legal considerations
68The mother’s motion to change support is governed by subsection 37 (2.1) of the Family Law Act.
69Any support claimed after an application is issued is prospective support, not retroactive support and is presumptively payable. See: Mackinnon v. Mackinnon, 2005 ONCA 502. That presumption was not rebutted by the father.
70In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for retroactive applications to 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 [3] continue to guide this exercise of discretion, as described in Michel [4]. 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.
71Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, par. 25.
72Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S., par. 97.
73In 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.
5.2 Has there been a material change in circumstances regarding child support?
74The first step in the Colucci framework is to determine if there has been a material change in circumstances regarding child support.
75The threshold for a person to establish a material change in circumstances in income is fairly low. See: Retroactive Support after Colucci, by Professor Rollie Thompson, 40 CFLQ 61 and Kerr v. Moussa, 2023 ONCJ 1; Marchan v. Clarke, 2023 ONCJ 483.
76Paragraph 1 of section 14 of the guidelines reads as follows:
Circumstances for variation
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:
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.
77The father acknowledged there has been a material change in circumstances. He agrees to an order basing his ongoing child support obligation on an annual income of $37,000.
5.3 What is the presumptive start date when child support should be changed?
78The second step in the Colucci analysis is to determine the presumptive start date when child support should be changed.
79The mother first broached the topic with the father of paying additional support in an email she sent to him on December 25, 2022. She made another request to him by email on July 10, 2023. The father responded:
“lol do what you want & feel dirty girl….again I’m waiting and ready…court, lawyer, etc….whatever floats your boat”.
80The court finds the date of effective notice and the presumptive start date to change support are December 25, 2022.
5.4 Should the court depart from the presumptive start date?
81The third step in the Colucci analysis is to determine if the court should depart from the presumptive start date.
82The mother asks to depart from the presumptive start date to January 1, 2022. The father asks to depart from the presumptive start date to November 1, 2024.
5.4.1 Reasons for delay
83In considering delay in applying for increased support, 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.
84A 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.
85Rather, 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. A delay motivated by any one of the reasons set out below should generally not be understood as arbitrary within the meaning of D.B.S.
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.
These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other fear and danger. See: Michel - par. 86.
86The court considered the mother did not delay too long in coming to court to change the order. She first tried to negotiate an agreement. She provided understandable reasons for the delay, being:
a) The existing order required the father to provide her with annual financial disclosure. He did not comply with the order.
b) She did not want to engage in protracted and acrimonious litigation with the father.
5.4.2 Blameworthy conduct
87Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.
88Blameworthy 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.
89The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. See: Michel, par. 34.
90The father has engaged in blameworthy conduct as follows:
a) He breached the existing order by failing to provide the mother with annual financial disclosure, as required in the existing order.
b) He failed to accurately disclose his actual income to the mother.
c) He failed to pay child support in accordance with his actual income.
5.4.3 Circumstances of the child
91There 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.
92The mother has gone into debt to ensure the needs of the child are met. She goes to school full-time and works full-time to meet those needs.
93The mother testified, and the court accepts, that she has gone without buying things for herself to ensure the child’s needs are met.
5.4.4 Hardship
94If 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.
95While 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.
96The father did not establish that a retroactive support order will cause him hardship. Any hardship can be addressed through reasonable payment terms for the arrears.
97The mother will have hardship if the court does not order retroactive support. It will make it difficult for her to pay the debts she has incurred due to the father’s failure to pay the appropriate amount of child support.
5.4.5 Start date to change child support
98The dominant factor in this case is the father’s blameworthy conduct in failing to reveal his actual income and pay support in accordance with this income. The court finds it is fair in these circumstances to depart from the presumptive start date and to retroactively change support starting on January 1, 2022, as requested by the mother.
Part Six – The father’s income and calculation of arrears as of October 31, 2024
99The final step in the Colucci framework is to quantify the proper amount of support for each year from the start date of retroactivity.
6.1 Legal principles for imputing income
100Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.
101The 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 879.
b) 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. However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
c) 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.
d) 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.
e) The court may impute income where it finds that a party has hidden or misrepresented relevant information respecting their income to the other party or to the authorities. This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes. See: Kinsella v. Mills, 2020 ONSC 4785; Prillo v. Homer, 2023 ONCJ 8.
f) The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196, at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441; M.A.B. v. M.G.C., 2022 ONSC 7207.
g) A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O’Connor, 2006 ONCJ 200.
h) The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade, 2002 ONSC 2806. This includes the obligation to present information in a user-friendly fashion. A recipient should not have to incur the expense to understand it. See: Reyes v. Rollo, 2001 ONSC 28260.
i) The payor must prove that any medical excuse for being underemployed is reasonable. See: Rilli v. Rilli, 2006 ONSC 34451. 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 ONSC 1063 and Stoangi v. Petersen, 2006 ONSC 24124.
j) A party who wishes to have her medical condition taken into account as a basis that she cannot work bears the onus to establish material disability. This goes beyond testifying that she suffers from depression and anxiety: she must establish that the extent of her condition disables her from work. This onus cannot ordinarily be discharged solely on the basis of the party’s testimony. … She would need to produce medical records and expert evidence about her condition, prospects and treatment. See: Geishardt v. Ahmed, 2017 ONSC 5513; Wilkins v. Wilkins, 2018 ONSC 3036.
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, 2006 ONCA 604.
6.2 The evidence and imputation of income
102The mother works as a clinical assistant at a hospital and earns $50,728 annually. The father asked to impute additional income to her. He did not meet his onus to show this should be done.
103The father is self-employed as a tattoo artist. He has rented a chair at a hair salon since 2018. He said he has been doing tattooing since 2010.
104The mother asked to impute the father’s annual income at $70,000. She says he earns close to this amount, earns substantial cash income and does not report this income to the CRA.
105The father filed notices of assessment showing the following income:
2020 - $3,331 2021 - $7,300 2022 - $15,146 2023 - $6,550
106The father’s evidence about his income and financial circumstances was inconsistent and unreliable. For instance:
a) He deposed at trial that he earned $34,000 in 2023.
b) He deposed in his December 12, 2023 financial statement that he was earning $27,600 and he had no personal loans.
c) He deposed in his trial affidavit that his projected income is $35,000 to $42,000 annually.
d) He deposed at trial that he is earning $37,000 in 2024 and now has personal loans in excess of $3,400.
107The income figures provided by the father have no connection with his income tax returns and notices of assessment. The father attributed the differences to his tax agent. He took no responsibility for his reported income to the CRA. It became apparent the father is earning unreported cash income and his income reported to the CRA is an unreliable indicator of what he is earning.
108The father provided an array of reasons for why his income is so low, including:
a) His business went down during the pandemic.
b) He had to leave Canada to care for an ailing parent.
c) He has been unable to concentrate on work because of the demands of this court case.
d) He has medical issues arising from a car accident that restrict him from working.
109The only reason with a whiff of merit is the impact the pandemic might have temporarily had on the father’s business, as personal services, such as tattooing, were restricted. The court will impute less income in 2022 to the father arising from this factor.
110The other reasons provided by the father had no merit. The father provided no evidence of medical issues affecting his ability to work, or any necessity to travel to leave Canada to care for a parent. This court case would have had little, if any, impact on his income-earning capacity. These purported justifications for his reduced income weakened the father’s credibility on all issues.
111The mother met her evidentiary onus to impute income to the father. The father produced his business bank account statements up until March 2024. The mother provided a chart setting out the credits by year in this account. The father did not dispute the amounts. He only disputed that all the credits were for income. The chart showed credits in the business account as follows:
2022 - $74,731 2023 - $81,334 for 11 months – projected to $88,728 for the year. 2024 – projected to about $96,000 for the year
112The father responded that many of the credits in the bank account were loans from various persons. The court rejects this evidence for the following reasons:
a) The father provided no documentary evidence of loans.
b) The father called no witnesses to confirm they lent money to him.
c) The father reported having no personal loans in his December 1, 2023 financial statement.
d) This was his business account. Presumptively, if someone lent the father money it would have gone into his personal account.
e) The father was provided with the mother’s chart of the credits in his bank account. It was incumbent on him to prove this was not income. He failed to do this.
113The father testified that some of the credits in his bank statements were from credit card transfers. He only identified one transfer for $200. The court reviewed his bank records. Credit card transfers of about $4,000 were identified as such in the bank statements in 2023. The father handwrote in these statements that other credits were credit card transfers. However, the bank did not identify them as such.
114The father also claimed some credits were for accident benefits in 2023. The bank statements did not identify the credits in this manner. However, this does not really matter as they would have been an income source.
115The father was unable to explain the source of the other credits. The logical inference is that these credits represented income.
116The court also accepts the mother’s evidence that the father earns cash income that might not be reflected in his business bank account. The father was not credible.
117The mother acknowledged the father has expenses that should be deducted from revenue, such as renting a chair. He also has costs for tattooing equipment and ink. The court has taken this into consideration.
118The court finds the father was likely earning or capable of earning $50,000 in 2022. It considered he was still recovering from the impacts of the pandemic. The guidelines table amount for one child at this income is $461 each month.
119The father’s business bank statements, as set out in paragraph 111 above, show increased revenue in 2023. This makes sense as his business was improving after the pandemic. The court finds he was earning or capable of earning $60,000 in 2023. The guidelines table amount for one child at this income is $556 each month.
120The father’s revenue increased further for the first three months of 2024, as set out in paragraph 111 above. If these credits were not representative of his 2024 income, the father should have provided more bank statements for 2024. The court finds the father is likely earning or is capable of earning annual income of $65,000, starting in 2024. The guidelines table amount for one child at this income is $605 each month.
121In imputing these levels of income, the court took into consideration that it is appropriate to gross-up the father’s income, as he is declaring and paying tax on substantially less income than he is actually earning. This is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See: Sarafinchin v. Sarafinchin; Prillo v. Homer, 2023 ONCJ 8.
Part Seven – Section 7 expenses
122The father agreed to pay his proportionate share of the child’s swimming and track and field expenses on an ongoing basis in proportion to the parties’ incomes.
123The mother has already incurred $1,783 for these expenses. The mother provided the father with notice of these activities and the receipts. They were reasonable and necessary for the child. The father should pay his proportionate share of these expenses. His proportionate share is about 53%, or $945.
124The father will be ordered to pay 53% of the child’s section 7 expenses on an ongoing basis. The mother shall pay 47% of these expenses. The mother shall inform the father of these expenses and provide him with receipts. The father shall pay his share within 30 days of receiving the receipts.
Part Eight – Payment of arrears
125This order creates immediate arrears of $8,999, calculated as follows:
a) 2022 – $461 - $300 x 12 months = $1,932
b) 2023 - $556 - $300 x 12 months = $3,072
c) 2024 - $605 – $300 x 10 months = $3,050
d) Section 7 expenses contribution = $945.
126The father may pay these arrears at the rate of $250 each month, starting on December 1, 2024. However, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount of arrears then owing shall immediately become due and payable.
Part Nine – Conclusion
127A final order shall go on the following terms:
a) The existing order is changed to provide that the father’s parenting time with the child shall be as follows:
i) Starting in November 2024, he shall have parenting time on two Saturdays each month from 10 a.m. to 5 p.m.
ii) Starting in February 2025, the parenting time shall increase to two weekends each month from Friday at 5 p.m. until Saturday at 5 p.m.
iii) Starting in May 2025, the parenting time shall increase to two weekends each month from Friday at 5 p.m. until Sunday at 5 p.m.
iv) The mother shall select the two weeks when the father will have his parenting time with the child each month and promptly notify him of these weeks once she obtains her work schedule.
v) The father must confirm each visit by email at least 72 hours in advance of the visit, or it will not take place.
vi) The father must notify the mother where any overnight visit will take place. He must also provide the mother with a contact number and facilitate the child speaking to the mother once during the visit.
vii) The father shall be responsible for transporting the child from and to the mother’s home when he exercises his parenting time.
viii) The father shall have such further and other parenting time as the parties agree to.
ix) The parties shall maintain email accounts to respectfully communicate with each other about the child and exchange arrangements for the child.
b) The existing order is changed to provide that the father’s support arrears are fixed at $8,999, as of October 31, 2024, as calculated in this decision.
c) The existing order is changed to provide that starting on November 1, 2024, the father is to pay the mother child support of $605 each month. This is the guidelines table amount for one child, based on an imputed annual income to the father of $65,000.
d) The father may pay the support arrears at the rate of $250 each month, starting on December 1, 2024. However, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount of arrears then owing shall immediately become due and payable.
e) Nothing in this order shall prevent the Director of the Family Responsibility Office from collecting arrears from any government source, inheritance, or lottery or prize winnings.
f) The father shall pay 53% and the mother shall pay 47% of the child’s section 7 expenses. The mother shall notify the father of these expenses and send him receipts. The father is to pay his share of the expenses within 30 days of being provided with the receipts.
g) The parties shall provide each other with complete copies of their income tax returns, including all schedules and attachments, and their notices of assessment, by June 30 each year.
h) A support deduction order shall issue.
128If either party seeks their costs, they are to serve and file written submissions by November 13, 2024. The other party will then have until November 27, 2024 to make a written response (not to make their own costs submissions). The submissions should not exceed three pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinator’s office. They can be emailed to the trial coordinator.
Released: October 30, 2024
Justice Stanley B. Sherr
1The existing order also contained terms that the mother may obtain all government documentation for the child and travel with the child outside of Canada without the father’s consent.
2A friend of the father’s produced one photograph of him with the child at her birthday in June 2023. It was not disputed he saw the child on that occasion.
3See: D.B.S. v. S.R.G.; 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.