COURT FILE NO. D45647/24
ONTARIO COURT OF JUSTICE
B E T W E E N:
M.D.
NATALIA DENCHIK, for the APPLICANT
APPLICANT
- and –
A.H.
AYESHA HUSSAIN, for the RESPONDENT
RESPONDENT
HEARD: JANUARY 26, 2026
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
1This hearing was about the respondent’s (the mother’s) child support obligations for the parties’ 10-year-old child (the child).
2The applicant (the father) seeks an order that the mother pay him child support starting on July 1, 2023. He seeks to impute an annual minimum wage income to her for each year support is ordered.
3The mother has been on social assistance for the past four years. She submits she has been unable to pay child support. She proposes paying child support of $50 each month, starting on February 1, 2026.
4The parties previously resolved all parenting issues in this case.
5The parties were the only witnesses at trial. They filed affidavits for their direct evidence. The mother also filed a financial statement. Both parties were cross-examined.
6The 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) What is the mother’s annual income for each year she is required to pay child support? Should income be imputed to her in any of these years, and if so, how much?
d) How should any support arrears, if any, be paid?
Part Two – Background facts
7The father is 52 years old. The mother is 41 years old.
8The parties lived together from 2014 until they separated on June 24, 2023.
9The parties have the one child together. The child is autistic and has ADHD.
10The child has lived primarily with the father since at least July 1, 2024.
11The mother has parenting time with the child from Friday to Sunday each weekend.
12The mother has a 2-year-old child from another relationship who lives with her. She deposed that she cannot locate that child’s father. She receives no child support from him. The mother and that child live with the mother’s two brothers and mother.
13The father testified that he worked in construction while the parties lived together. He said he has not worked for the past few years because of his child-care obligations.
14The father financially supported the mother and the child during their relationship. He said that the mother only worked for a few months in 2019 at a grocery store. This work was interrupted by the pandemic.
15The father issued his application for parenting and child support orders on November 8, 2024. The mother was served with his application on November 18, 2024.
16The mother filed her Answer/Claim on January 6, 2025.
17On February 20, 2025, the parties consented to temporary orders including:
a) The child’s primary residence to be with the father.
b) The parties to have joint decision-making responsibility for the child.
c) The mother to pay child support of $297 each month to the father, starting on September 1, 2025, based on a projected annual income of $34,420.
d) A referral to the Office of the Children’s Lawyer.
18On June 23, 2025, on consent, the court ordered additional summer parenting time for the mother. The mother had not completed the intake forms for the Office of the Children’s Lawyer. The court made another referral order to the Office of the Children’s Lawyer, specifically seeking a Voice of the Child Report. The court also ordered the mother to serve and file at least 10 days before the next court date all medical information she intended to rely upon. The court set out what medical information would assist the court.1
19On September 19, 2025, the court found the mother in breach of the June 23, 2025 court order. Again, she did not complete the intake forms for the Office of the Children’s Lawyer. She filed no medical disclosure.
20On December 15, 2025, the parties consented to final parenting orders on terms similar to the temporary orders. A hearing plan was organized for this support trial.
21The mother has not paid any child support to the father.
Part Three– The start date for support
3.1 The Colucci framework
22The 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;
23Any 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.); Balian v. Balian, 2025 ONSC 4128.
24In 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. factors2 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.
25This 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).
26In 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.
27Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, par. 25.
28Retroactive 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?
29The first step in the Colucci analysis is to determine the presumptive start date when child support should start.
30The father was asked in cross-examination when he first asked the mother for child support. He answered, “I never bothered with that – I didn’t ask her”.
31The court finds that the date of effective notice is the same date of formal notice – November 18, 2024, when the mother was served with his application seeking child support. This is also the presumptive start date for support.
3.3 Should the court depart from the presumptive start date?
32The second step in the Colucci analysis is to determine if the court should depart from the presumptive start date.
33The father asks to depart from the presumptive start date. He asks that the start date for child support be July 1, 2023.
34The court will consider the departure factors set out in D.B.S., as modified by Michel, below.
3.3.1 Reasons for delay
35In 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.
36A 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.
37Rather, 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.
38The father provided no evidence about why he delayed in seeking child support from the mother. A logical inference from the evidence that follows is that he was aware she was not capable of working and paying child support.
3.3.2 Blameworthy conduct
39Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.
40Blameworthy 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.
41The court finds that the mother did not engage in blameworthy conduct. For reasons that will be set out below, she has not had the ability to pay any child support.
3.3.3 Circumstances of the child
42There 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.
43The father provided no evidence that the circumstances of the child were disadvantaged by the failure of the mother to pay child support. However, since she failed to pay any child support, it is logical to infer that the father assumed the entire burden of child support to prevent any disadvantage for the child.
3.3.4 Hardship
44If 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.
45While 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.
46A retroactive child support order would cause the mother financial hardship. Similarly, not receiving any child support is causing the father financial hardship.
3.3.5 Start date to change child support
47The court will not depart from the presumptive start date of November 18, 2024.
Part Four – The mother’s income
4.1 Positions of the parties
48The final step in the Colucci framework is to quantify the proper amount of support for each year from the start date of retroactivity. The mother’s income for each year needs to be assessed to do this.
49The mother has been in receipt of social assistance since 2021. Her annual income since 2022 has been as follows:
2022 - $10,579
2023 - $11,786
2024 - $11,702
50The mother’s social assistance income in 2025 was comparable to her income in 2024.
51The mother deposes that she is unable to work due to medical reasons and her child-care responsibilities.
52The father acknowledged that the mother has medical issues. However, he feels she is not taking active steps to address those issues. His counsel submitted the mother could work from home or work as a secretary on a full-time basis earning minimum-wage annual income.
53The father asks the court to draw an adverse inference against the mother arising from her failure to provide any medical evidence supporting her claim that she is unable to work and for not taking any steps to address any health impairment.
4.2 Legal considerations
54The court may impute income to a party pursuant to section 19 of the guidelines.
55The Ontario Court of Appeal in Kohli v. Thom, 2025 ONCA 200, set out the following three questions which should be answered by a court in considering a request to impute income:
i) Is the party intentionally under-employed or unemployed?
ii) If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs, the needs of the child or reasonable health needs?
iii) If not, what income is appropriately imputed?
56The case law for imputation of income in these circumstances 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 41868 (ON CA), [2002] O.J. No. 3731(Ont. C.A.).
b) A court must consider whether the under-employment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse. If the court is satisfied that one of these reasons has been established, it cannot impute income to the party. See: Lavie v. Lavie, 2018 ONCA 10, at para. 28.
c) The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). 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.
d) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
e) As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 22560 (ON SC), [2000] O.J. No. 453, (Ont. Fam. Ct.).
f) The receipt of ODSP or Workplace Safety and Insurance Board benefits is not sufficient proof of one’s inability to work for support purposes. See: Tyrrell v. Tyrrell 2017 ONSC 6499 (SCJ). The court cannot take judicial notice of any eligibility requirements for ODSP. Nor can it delegate the important and complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria. See: Abumatar v. Hamda, 2021 ONSC 2165; Bougataya v. Turkmen, 2023 ONCJ 341.
g) 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 (C.A.), at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441 (S.C.); M.A.B. v. M.G.C., 2022 ONSC 7207.
h) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.
i) A party’s child-care responsibilities to other children can be a legitimate reason for a reduction in income. See: J.C.M. v. K.C.M., 2016 ONCJ 475, par. 171; Black-Johnson v. Black, 2016 ONCJ 736. However, the choice to reduce income for this reason must be reasonable. See: H.A. v. M.M., 2016 ONCJ 246; Reece v. Thomas, 2017 ONCJ 311.
j) The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli, 2006 34451 (ON SC), [2006] O.J. No. 4142 (SCJ.). Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton 2005 1063 (ON SC), [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen 2006 24124 (ON SC), [2006] O.J. No. 2902 (SCJ).
k) Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.
l) Even if the court accepts that the party has health-related challenges that may impact their income earning capacity, it must consider the nature and extent of the impact and whether the party could work on a part-time basis or in a less demanding position. See: Bentley v. Bentley, 2009 CarswellOnt 562 (S.C.J.); Kinsella v. Mills, 2020 ONSC 4785.
57The above is a non-exhaustive list and as such, the court has discretion to impute, or not impute, income based on other circumstances.
4.3 Analysis
58The mother has not looked for work since 2021. There is no issue that she is intentionally unemployed. The issue is whether this decision is justified based on her health needs and childcare responsibilities.
59In most cases, the court will require detailed medical evidence before it accepts a party’s evidence that they are unable to work for medical reasons. Justice Carole Curtis set out the standard for such evidence in Davidson v. Patten, 2021 ONCJ 437, writing that a party resisting a claim for imputation of their income based on medical reasons should provide a medical report setting out at least the following information:
i. Diagnosis;
ii. Prognosis;
iii. Treatment plan (is there a treatment plan? And what is it?);
iv. Compliance with the treatment plan; and
v. Specific and detailed information connecting the medical condition to the ability to work (e.g.: this person cannot work at the pre-injury job; this person cannot work for three months; this person cannot work at physical labour; this person cannot return to work ever).
60However, the failure to provide such evidence is not an absolute bar to a party resisting a claim for imputation of their income based on medical reasons. If the court believes the party’s evidence about their medical impairments, that can be a sufficient basis not to impute income.
61The reality in our court is that there is a small segment of our litigants who have legitimate medical issues but who are too overwhelmed by the process to obtain the necessary medical evidence to corroborate it. Their medical issues are often the very reason they are overwhelmed and cannot produce this evidence. When the court finds this is happening, it is left to assess the credibility and reliability of the party’s evidence.
62The court finds this is one of those situations. The court finds that the mother has been too overwhelmed by her medical issues to provide the corroborating medical evidence.
63The court found the mother to be a very credible witness. She answered difficult and often embarrassing questions about her medical conditions in a candid and straight-forward manner. She didn’t hesitate to give evidence that may have been to her detriment. Much of her evidence about her medical disabilities was confirmed by the father.
64The mother has struggled with incontinence issues since she was a child. She described her humiliation when her father required her to sit on plastic bags in the car.
65The father testified that the mother has had the incontinence issues since the child was born. He acknowledged times the mother urinated in their bed. She frequently woke up at night to urinate. He described one time when the parties were driving from Scarborough to Oshawa and had to stop once or twice for washroom breaks. He said, that except for a few months, she never worked during their relationship. He was the sole financial supporter of the family. He commented that she was often afraid to go out. He expressed frustration that she wasn’t taking the necessary steps to fix her problem. He speculated that she was afraid to have surgery done for the issue. When asked if she could work full-time, he answered, “yes and no. It is what it is”.
66It was evident to the court during her testimony that the mother suffers from considerable anxiety. She testified in a tearful and hesitant manner. The questioning was very difficult for her.
67The mother’s anxiety was also reflected in her inability to follow through with the referrals to the Office of the Children’s Lawyer, even though it might have been to her advantage. She testified how she is too afraid to learn how to drive a car.
68The mother has been regularly seeing a psychologist for her social anxiety. She has been prescribed escitalopran oxalate 20 mg. for this condition. She says she takes it regularly. When asked why she didn’t obtain a medical report from her psychologist, she answered, “I asked, maybe I am just not assertive enough”. When asked why she hadn’t been more aggressive in obtaining medical treatment, she said, “my anxiety is preventing me from going out and doing what I need to do.”
69The mother has seen urologists in the past for her incontinence issues. She recently saw another urologist who has sent her for a series of tests. She said that surgery was discussed. She said she asked the urologist for a medical report, and the urologist told her to speak to her family doctor. She said she asked her family doctor for a report and repeated her evidence that maybe she wasn’t assertive enough when she made the request.
70The mother wears adult diapers and pads. She said that every day she involuntarily urinates. She described how she cannot go more than 30 minutes without urinating. She says she suffers from fatigue and nausea. She said she has been on two types of bladder medications. She said they help for a while, but the problem then gets worse again. She also says she frequently has diarrhea.
71The mother said she worked more than described by the father. She worked on and off at a grocery store for a few years from 2019 to 2021. Her work was interrupted by the pandemic. She said she could no longer do the work because whenever she lifted items she would urinate.
72The mother has been on social assistance since she left her work at the grocery store in 2021.
73The mother has very limited education and job skills. She went back to school as an adult to complete her high school education. She has no other training or job skills.
74The mother’s ability to earn income is also negatively impacted by her child-care responsibilities and living arrangements. She is the caregiver for her 2-year-old child. She receives no assistance from that child’s father. The court notes the father is also not working due to his child-care obligations – it is not criticizing him. He is primarily caring for a special needs child. The point is that the reality of the parties’ child-care obligations adversely affect their ability to work.
75The father’s counsel suggested the mother could work remotely. This is not a realistic suggestion. She lives in a crowded apartment with her child, her mother and two brothers. The father also suggested that the mother could work as a secretary. This was also an unrealistic suggestion. The mother has no job experience and suffers from anxiety and incontinence issues.
76The court finds that the mother’s intentional unemployment is justified by both her health issues and her child-care responsibilities. The court will not impute additional income to her.
77The income the mother is receiving from social assistance does not generate any support payments under the Child Support Guidelines (the guidelines). No child support will be ordered. The court will also rescind the temporary child support order made on February 20, 2025.
78The mother offered to pay the father $50 each month for ongoing child support. This is not required under the guidelines. However, nothing prevents her from making such payments to the father. He is fully responsible for supporting the child. Any contribution from her would ease his financial burden.
Part Five – Conclusion
79A final order shall go on the following terms:
a) The father’s application for child support is dismissed.
b) The February 20, 2025 temporary child support order is rescinded. To be clear, no child support is owed by the mother to the father.
c) The mother is to provide the father with her income tax returns and notices of assessment by June 30th each year.
d) The mother is to immediately notify the father if she obtains employment. She is to provide him with the name and address of his employer and copies of her last three pay stubs.
80The court has sympathy for both parties. The mother is struggling with many health challenges. This case has been very stressful for her. The father has been kind to the mother. He facilitates her parenting time with the child. He has some understanding of her medical issues. He also is financially supporting the child on his own. He is primarily caring for a special needs child. For these reasons, the court is disinclined to order any costs. However, if the mother wishes to make written costs submissions, she is to do so by February 10, 2026. The father will have until February 24, 2026 to respond. The submissions shall not exceed three pages, not including any offer to settle or bill of costs.
81The court thanks counsel for their presentation of this case.
82Ms. Hussain shall take out this order.
Released: January 28, 2026
Justice Stanley B. Sherr
- 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.
Footnotes
- The mother no longer had counsel and was assisted by duty counsel in reaching this consent.
- 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:
- See: Michel v. Graydon, 2020 SCC 25.
