DATE: January 10, 2025
COURT FILE NO. D45038/24
ONTARIO COURT OF JUSTICE
B E T W E E N:
ANDRENE TAMAR JUHMI
ACTING IN PERSON
APPLICANT
- and –
DEXTER DOUGLAS
ACTING IN PERSON
RESPONDENT
HEARD: JANUARY 8, 2025
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
1This hearing was about the respondent’s (the father’s) child support obligations for the parties’ two children (the children).
2The applicant (the mother) seeks an order that the father pay child support in accordance with his reported annual income retroactive to January 1, 2023.[1]
3The father opposes this request. He wants to pay child support of $600 each month on an ongoing basis in accordance with an oral agreement the parties reached when they separated in June 2021.
4The father says he has complied with the oral agreement by making direct monthly payments to the parties’ oldest child (K).
5The mother asks that the father not receive any credit for payments made directly to K after January 1, 2023, as the father refused her request to pay support directly to her. The father seeks full credit for these payments.
6Only the parties testified. The mother attempted to file affidavits at trial from K and her adult child from another relationship (S). The court had informed the parties at the prior court appearance that if they wanted someone to testify on their behalf, they had to produce that person at trial for cross-examination. Neither K nor S attended at the trial. The court did not accept the two affidavits.
[7] The issues for the court to determine are:
a) What is the presumptive start date for child support?
b) Should the court depart from the presumptive start date, and if so, when should support start?
c) How much child support should the father pay for each year from the start date chosen?
d) What credits, if any, should the father receive for support paid?
e) How should any support arrears be paid?
Part Two – Facts
8Many of the material facts in this case were not in dispute.
9The mother is 44 years old. She lives with the children and two adult children she has from another relationship. She is employed at a daycare and earns annual income of about $40,000.
10The father is 55 years old. He is employed as a landscaper.
11The parties have the two children together. K is now 18 years old. She is in her first year of post-secondary school at George Brown College taking a course to become a Child and Youth Worker. KD is 15 years old and he is in full-time attendance at high school.
12The parties lived together from 2005 until June 2021.
13The mother asked the father to pay her $600 each month for child support when they separated. The father agreed to this. There was no written agreement.
14In 2021, the father made support payments directly to S. (the mother’s adult child). The mother objected to this. S told the father by the end of 2021 that she did not want the father to make payments to her.
15Starting in 2022, the father paid monies directly to K. The mother said she objected to this. The father said the mother refused to give him information to e-transfer money directly to her. The mother denied this.
16The mother issued her application for support on April 24, 2024.
17On July 15, 2024, the parties entered into a consent at First Appearance Court. This was incorporated into a temporary order. The father was ordered to pay child support to the mother of $600 each month, starting on August 1, 2024. This amount was based on the father’s annual income being $40,000. The father was required to provide financial disclosure to the mother.
18The parties attended at court on September 5, 2024. The father had not filed his Answer/Claim or any financial information. He was in default. He sought an extension to file this material. This request was granted on terms. One of the terms was that he pay temporary child support of $978 each month, starting on January 1, 2024. This was based on an annual income of $64,184.
[19] The father is a T4 employee. His income from 2021 to 2023 has been as follows:
2021 - $55,692
2022 - $55,600
2023 - $57,984
20The father filed his year-to-date pay stub ending on November 30, 2024. His gross income was $57,305. This projects to an annual 2024 income of $62,514.
Part Three – The start date for support
3.1 The Colucci framework
21The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act (the Act). This clause reads as follows:
Powers of court
34 (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;
22Any support claimed after an application is issued is prospective support, not retroactive support and is presumptively payable. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.). That presumption was not rebutted by the father.
23In 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 [2] continue to guide this exercise of discretion, as described in Michel.[3] 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.
24This framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. It should also be applied, with necessary modifications, for an original request for retroactive support. 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; Hajak v. Hemmings, [2024] O.J. No. 4763 (SCJ).
25In 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 will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 24. 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.
26Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, par. 25.
27Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S., par. 97.
3.2 What is the presumptive start date when child support should start?
28The first step in the Colucci analysis is to determine the presumptive start date when child support should start.
29The mother testified that she continually asked the father to pay child support directly to her after June 2021. She said she asked him to do this at least twenty times. The father denied this. The court found the mother’s evidence more credible. The father acknowledged that the mother was always complaining to him about money. He was resentful at trial that she kept seeking money from him. He felt her claims were unreasonable. The father’s credibility was also adversely affected because he represented his annual income was $40,000 at First Appearance Court when he was actually earning over $60,000.
30The court accepts the mother’s evidence that she continually asked the father to pay child support directly to her and he refused.
31The court finds that the mother broached the issue of child support with the father by August 1, 2021, at the latest. This was not more than three years before the date the application was issued on April 24, 2024 (the date of formal notice).
32The date of effective notice and the presumptive start date for child support to start is August 1, 2021.
3.3 Should the court depart from the presumptive start date?
33The second step in the Colucci analysis is to determine if the court should depart from the presumptive start date.
34The mother agreed to depart from the presumptive start date, in the father’s favour, from August 1, 2021 to January 1, 2023.
35The father asks that the start date for the calculation of support be January 1, 2025.
3.3.1 Reasons for delay
36In 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.
37A 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.
38Rather, 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.
39The mother provided some understandable reasons for her delay in bringing the case to court, being:
a) The father did not provide her with disclosure about what income he was earning. He did not provide her with any financial disclosure until the court required him to provide his year-to-date pay stub at the court appearance on September 5, 2024. She had no evidence to assess the appropriate amount of child support.
b) She did not have the emotional means to engage in litigation with the father. She knew he would be resentful and difficult to deal with. Her fears were borne out. The court observed that the father was very angry and aggrieved that she was seeking child support in accordance with the Child Support Guidelines (the guidelines) and asking him to pay her support directly.
c) The court accepts the mother’s evidence that when she asked the father to pay her support directly, he told her to take him to court and that she wouldn’t even get the $600 each month he had agreed to pay to her. The father admitted that he told the mother to take him to court. He stated the money she received in government benefits and what he was giving to K was enough for her.
3.3.2 Blameworthy conduct
40Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.
41Blameworthy 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.
42The 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.
43The father has engaged in blameworthy conduct as follows:
a) He insisted on paying child support directly to K instead of to the mother.
b) He failed to disclose his actual income to the mother.
c) He misrepresented his annual income as being $40,000 at First Appearance Court. This resulted in a very low temporary support order. This was corrected at the next court appearance when the court required him to provide his year-to-date pay stub.
d) He failed to pay child support in accordance with his actual income.
e) He intimidated the mother by saying she wouldn’t even receive $600 each month if she took him to court.
3.3.3 Circumstances of the children
44There 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.
45The mother testified she prioritized the children’s needs. She had to rely on financial assistance from friends and family to do this. She was unable to save money due to the father’s failure to pay her child support.
3.3.4 Hardship
46If 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.
47While 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.
48The 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.
49The mother suffered financial hardship and had to rely on third parties to support the children due to the father’s failure to pay appropriate child support.
3.3.5 Start date to change child support
50The mother’s proposal to start child support on January 1, 2023 is very generous in these circumstances. This will be ordered.
Part Four – Calculation of support accrued since January 1, 2023
51The final step in the Colucci framework is to quantify the proper amount of support for each year from the start date of retroactivity.
52K turned 18 years old in May 2024. The court must determine if the guidelines approach is inappropriate after that date. Subsection 3 (2) of the guidelines reads as follows:
Child the age of majority or over
(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,
(a) the amount determined by applying these guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.
53The closer the circumstances of the child are to those upon which the usual guidelines approach is based, the less likely it is that the usual guidelines calculation will be found to be inappropriate. See: Rebenchuk v. Rebenchuk, 2007 MBCA 22, at paragraph 30; Stephenson v. Thomas, 2014 ONCJ 669. For instance, if the child is living at home and attending post-secondary school, the guidelines approach will usually be applied. See: Sarreye v. Sheikhamed, 2023 ONCJ 525.
54The court finds that the guidelines approach for K is appropriate. She is living at home and being supported by the mother. The mother requires the guidelines table amount of child support for her. K is contributing to her post-secondary expenses. She obtained student loans and worked as a camp counselor this past summer. The mother is not claiming special and extraordinary expenses, pursuant to section 7 (section 7 expenses) of the guidelines from the father.
55There is no merit in the father’s position that he should pay the mother child support of $600 each month. This is well below his guidelines table support obligation.
56The court will not enforce the oral agreement reached between the parties in June 2021.
57First, subsection 55 (1) of the Act sets out that a domestic contract is unenforceable unless made in writing, signed by the parties and witnessed. None of this was done here.
58Second, subsection 56 (1.1) of the Act sets out that in the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract. The court finds that, if the agreement to pay child support of $600 each month had been a valid domestic contract, the support amount agreed to was not reasonable. It was well below the table guidelines amount. Child support is the right of the child and cannot be bargained away by the recipient parent unless other reasonable arrangements are made for the child’s support. See: Gray v. Rizzi, 2016 ONCA 152. Other reasonable arrangements were not made here for the children’s support. Further, the father did not increase his payments when his income increased in 2023 and 2024.
59Third, the father breached the agreement by not paying support directly to the mother and by not paying the amounts agreed to. He cannot now rely on the agreement as a shield to paying the appropriate amount of child support, as required by the guidelines.
60The father is fortunate that the mother has chosen not to seek section 7 expenses from him. She is entirely paying for KD’s tutoring expenses.
[61] Child support has accrued since January 1, 2023 in the amount of $22,984, calculated as follows:
2023 – $884 x 12 months = $10,608[4]
2024 and January 2025 – $952 x 13 months = $12,376[5]
Part Five – Support credits
5.1 Legal considerations
62The court has the discretion to provide some credit to the father for payments made on behalf of the child. For instance, courts will sometimes credit payors if they buy diapers, clothing and other supplies for their children that assists the support recipient to support them. These do not have to be section 7 expenses. See: Hunchak v. Anton, 2026 SKCA 44; Thomas v. Charles, 2024 ONCJ 87; Swiderski v. Dussault, 2009 BCCA 461; Lewis v. Lynch, 2024 ONCJ 545.
63Courts will be more reluctant to exercise their discretion in a payor’s favour when they have engaged in blameworthy behaviour. In Lewis v. Lynch, supra, this court wrote at paragraph 71:
This is not a case where the court should exercise its discretion in favour of the father. The father’s conduct was dishonest and highly manipulative. The mother needed support to pay for the basic necessities for the children. Instead, he kept the mother impoverished while he was able to play the role of the “fun parent”, taking the children to expensive activities the mother could not afford.
64In Wensel v. Rhodes, 2012 BCCA 245, the Court of Appeal declined to give credit for direct payments made by a payor for the following reasons:
a. The custodial parent should be the one to make the decisions about the child’s expenditures.
b. A private unilateral scheme operated by the payor can be a method of control that undermines the authority of the custodial parent.[6]
c. The payor is in sole possession of the information about direct payments. Unless the payor is forthcoming about such payments in a timely way, the payee is at the mercy of the payor’s record keeping.
d. The payor may choose to make additional payments for recreational or other activities which present them in a more positive light to the children and others, whereas the custodial parent may find themselves funding more mundane living expenses.
65The creation of unilateral support regimes has been criticized by several courts. See for example: Greene v. Greene (2010), 92 R.F.L. (6th) 52 (BCCA); Cameron v. Cameron, 2023 ABKB 52; Lewis v. Lynch, supra; Crightney v. Garcia, 2024 ONCJ 431.
5.2 Positions of the parties and evidence
66The father began sending e-transfers to the mother for child support in August 2024. The parties agreed the father should be credited with these payments. The parties agreed the father paid the mother $4,190 from September 2024 until the trial date.
67The mother said the father also paid her $590 in August 2024. The father said he paid her $1,020. The mother provided an e-transfer for $590. The father provided no evidence of further payments being made to the mother that month. The court prefers the mother’s evidence. The father will be credited with $590 for August 2024. This results in a total credit of $4,780 for support paid since August 1, 2024.
68The father deposed he gave $6,770 to K in 2023. However, he only provided documents showing e-transfers to her of $2,220. He claimed the balance was paid to her in cash. The mother doubted the father gave K anywhere close to $6,770 in 2023.
69The father claimed he gave $2,570 to K between January and July 2024. He provided evidence of $1,820 being e-transferred to her.
70The father seeks credit for all payments he claimed that he made to K after January 1, 2023. The mother asks that the court not give the father any credit for payments made to K.
5.3 Analysis
71The court does not have much sympathy for the father’s position.
72The mother needed child support for food, clothing and shelter for the children. Instead, the father unilaterally chose to give money directly to K.
73The father exhibited extremely controlling behaviour. He was determined to control any support paid for his children and that the mother receive nothing from him. The court accepts the mother’s evidence that the father told her that “any money that I have will go my children to do what they want to do. It is not for you”.
74The father has continued to try to control the payment of support despite the temporary court order. He explained that he has not paid the full amount of temporary child support ordered because he bought a $2,000 video game system for his son. He wants to be the fun parent and not provide the mother with support for the children’s basic needs.
75It is up to the mother to decide how child support is spent, not the father.
76The mother tried very hard to convince the father to pay support directly to her. She had to come to court to accomplish this. The father complained loudly about this at trial.
77In Crightney, this court wrote that a payor seeking credits for direct support payments should provide the following evidence:
a) The expenses he paid for the child while exercising his parenting time.
b) The expenses he paid for the child at the request of the mother.
c) The expenses he paid for the child that assisted the mother in supporting the child.
d) The expenses he paid for the child after consultation with the mother and with her consent.
The father provided none of this evidence.
78The court does not accept the father’s evidence that he paid K much more in 2023 than the $2,220 reflected in the e-transfers he filed. It accepts that he paid her $1,820 in 2024, up until August. It is unknown what portion of these payments were for gifts. The court does not accept the father’s evidence that he paid her much more than this in cash.
79The court considered that the mother is being very generous with the father because:
a) She did not claim support should start on the presumptive start date of June 1, 2021. She has waived a significant claim for additional child support.
b) The father did not pay her support directly and the oral agreement for $600 each month was well below the guidelines table amount he should have been paying to her.
c) The father did not prove he paid $600 each month to K in 2022. He only provided documentation showing payments to her totalling $1,300. Again, he claimed he paid the balance to K in cash, without any supporting proof.
d) She is not seeking a contribution from him towards the children’s section 7 expenses.
80The court will only grant a partial credit to the father for the amounts he proved he paid directly to K from January 1, 2023 until July 31, 2024. The mother likely received some support benefit from these payments. The father will be credited with $2,500 for this period.
81This $2,500 credit will be added to the $4,780 the father has paid the mother directly for support since August 1, 2024 (as set out in paragraph 67 above), for a total credit of $7,280.
82This order will result in support arrears of $15,704 ($22,894 – $7,280).[7]
Part Six – Payment of arrears
83To alleviate any hardship, the father may pay these arrears at the rate of $325 each month, starting on February 1, 2025. This gives him about four years to pay the arrears. 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 Seven – Conclusion
84A final order shall go on the following terms:
a) The father’s support arrears are fixed at $15,704, as calculated in this decision.
b) The father may pay the support arrears at the rate of $325 each month, starting on February 1, 2025. 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.
c) The father shall pay the mother child support of $952 each month, starting on February 1, 2025. This is the guidelines table amount for two children, based on his annual income of $62,514.
d) 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.
e) The father shall provide the mother with complete copies of his income tax returns, including all schedules and attachments, and his notices of assessment, by June 30 each year.
f) A support deduction order shall issue.
85If either party seeks their costs, they are to serve and file written submissions by January 27, 2025. The other party will then have until February 12, 2025 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 or emailed to the trial coordinator’s office.
86The father must pay his child support to the mother. He will not receive credits in the future for any payments made directly to a child, any items he purchases for a child, or any activities he pays for directly for a child.
Released: January 10, 2025
Justice Stanley B. Sherr
1In her opening statement, the mother asked that child support be retroactive to June 1, 2021 – when the parties separated. She changed her mind during the case and asked the court to order that support start on January 1, 2023.
[2] See: 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.
3See: Michel v. Graydon, 2020 SCC 25.
4The monthly guidelines table amount for two children based on the father’s 2023 income of $57,984 is $884.
5The monthly guidelines table amount for two children based on the father’s projected 2024 income of $62,514 is $952.
6Jivaraj v. Jivaraj, 2010 ONSC 4949, sets out that courts should be wary of ordering direct payments to a child since there are enforcement hurdles and it might be being used as an instrument of control.
7This is the total support accrued since January 1, 2023, as calculated in paragraph 61 above, less the support credits.