Court File and Parties

Court File No.: Toronto D819/95 Date: 2012-08-07

Ontario Court of Justice

Between:

Ashlyn O'Connor Applicant

— AND —

Ralph Houlder Respondent

Before: Justice E.B. Murray

Heard on: August 1, 2012

Reasons for Decision on Motion released on: August 7, 2012

Counsel:

• Barry Nussbaum, for the applicant
• Garry Lamourie, for the respondent

Decision

MURRAY J.:

[1] This is my decision on a motion by the Applicant mother to change a child support order made September 13, 1995, which provided that the Respondent father pay her $250 monthly for the child Rhea, born March 30, 1993.

[2] The parties have agreed to a final order that the Respondent pay support in a table amount of $558 monthly based on his current annual income of $60,100. This reflects the temporary consent order made November 23, 2011.

[3] The outstanding issues are the Applicant's claims for an increase in the table amount, retroactive to March 2008 (3 years before her motion was begun), and her claim for a contribution from the Respondent to tutoring expenses for Rhea, payable retroactively and prospectively. The Applicant had claimed a contribution to Rhea's post-secondary education expenses (the child began a community college program in September 2011), but abandoned this claim on the argument of the motion because Rhea will receive funds from an OSAP grant and loan sufficient to pay these expenses. The Respondent resists the remaining claims.

[4] The onus is on the Applicant to establish the claims for a retroactive order and for a contribution towards extraordinary expenses.

[5] The Applicant commenced her motion on September 30, 2011; the Respondent was served with her materials on October 12, 2011. The previous orders made on consent provide that the Respondent pay child support in the appropriate table amount commencing October 1, 2011. An order which provides for an increase in support prior to September 30, 2011 would be a retroactive order.

Retroactive Awards

[6] The Supreme Court of Canada set out four factors which should structure a court's discretion in considering a request for a retroactive order of child support in D.B.S. v. S.R.G., 2006 SCC 37:

• Reason for recipient's delay in seeking child support, or an increase in support;
• Conduct of payor;
• Circumstances of the child, past and present;
• Any hardship which might be caused to the payor by a retroactive award.

[7] I consider the facts of this case in light of those factors.

Reason for Delay

[8] The Applicant says that she asked the Respondent to disclose his income or increase support "approximately ten or twelve years ago" and approximately five years ago, and that he refused both requests. She has no documentary evidence of these requests.

[9] The Respondent denies that such requests were ever made prior to him being served with the Applicant's motion to change.

[10] The Applicant says that she had multiple reasons for her delay in seeking an increase:

• She did not understand her legal rights, and did not have money for a lawyer.
• She did not know about the availability of free legal advice until 2010, when she attended a free legal information session at the court and did gain an understanding of her rights.
• She was afraid that an action for increased support would cause the Respondent to cut off contact with Rhea.

[11] The Respondent submits that the reason for the Applicant's delay is that she was satisfied with the status quo. He alleges that:

• He always paid the support owing under the 1995 order on time.
• He paid substantial additional expenses for Rhea, totalling between $1500 and $2000 annually. These payments related to expenses such as the Respondent's cell phone bill, clothing, prom expenses, and airfare.
• He lent the Applicant $5000 in 2010 (money that has not been repaid).
• He and his wife had an ongoing cordial social relationship with the Applicant and her then-spouse, a relationship which ended in late 2010.

[12] The Applicant does not contest these allegations.

[13] I do not find the Applicant's explanations for the lengthy delay in commencing her claim persuasive.

• The Applicant had the financial means prior to January 2010 to consult a lawyer if she required legal information or advice. She was employed by Canada Post and prior to January 2010 earned an income in excess of that of the Respondent (Her 2009 tax return shows an income of $65,000). She had retained the services of a lawyer to obtain the 1995 order.
• When her income declined in 2010, she attended a free legal information program.
• There is no reliable evidence of intimidating behaviour by the Respondent. The Applicant does not deny any of the facts alleged by him above, which are not indicative of such a relationship.
• Given the Respondent's evidence about his regular visits with Rhea, which is not contested by the Applicant (except for the allegation that he stopped seeing Rhea in June 2011, an allegation which he denies), I do not find that there is an air of reality to the Applicant's submission that she delayed a retroactive application for over ten years because she was afraid that he would cut off contact with the child.

[14] It is not incumbent on me to make a finding as to the reason for the Applicant's delay in making this motion. However, based on the evidence I have, it appears to me that the Applicant was content with the status quo until two events—the termination of her social relationship with the Respondent, and Rhea's commencement of a community college program.

[15] I find the Applicant's delay in commencement of her motion to be unreasonable.

Conduct of the Respondent

[16] D.B.S. v. S.R.G. recognized that a parent who is paying support pursuant to a court order has a valid reliance interest based on the "certainty" of the order, but that a child also has an interest in receiving the support to which she is entitled under the Guidelines, and that a parent has an obligation to insure that a child receives this support. Claims for retroactive increases call for a balancing of these two interests. A payor's interest in the certainty of the order is diminished, to the extent that he has engaged in what the court termed "blameworthy behaviour".

[17] D.B.S. v. S.R.G. held that in cases in which there is an existing support order, that various behaviours can indicate blameworthy conduct by a payor. Those behaviours include:

• failure to pay the support provided for in the order, and
• refusal to disclose income, when disclosure is provided for in the order or requested by the recipient.

[18] I do not find that the Respondent has engaged in these behaviours.

[19] D.B.S. v. S.R.G. held further that blameworthy conduct can be made out if a payor does not make support payments at the appropriate Guideline level. The court observed that:

"108 …… a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour. Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct. In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent's belief that his/her obligations were being met. Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order. However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay.

109 Finally, I should also mention that the conduct of the payor parent could militate against a retroactive award. A court should thus consider whether conduct by the payor parent has had the effect of fulfilling his/her support obligation. For instance, a payor parent who contributes for expenses beyond his/her statutory obligations may have met his/her increased support obligation indirectly. "

[20] It is undisputed that the payments of $250 monthly made by the Respondent were substantially below the Guideline level.

[21] In 2008 the Respondent's income was $53,809; the related Guideline payment was $498 monthly. The difference between what would be owing under the Guidelines and what was paid was $248 monthly.

[22] In 2009 the Respondent's income was $56,533; the related Guideline payment was $525 monthly. The difference between what would be owing under the Guidelines and what was paid was $275 monthly.

[23] In 2010, the Respondent's income was $60,101; the related Guideline payment was $558 monthly. The difference between what would be owing under the Guidelines and what was paid was $308 monthly.

[24] The parties agreed to use the Respondent's 2010 income to determine his support obligation from October 2011 and forward. In 2011, the related Guideline payment was $558 monthly. As set out above, the difference between what would be owing under the Guidelines and what was paid was $308 monthly for the first ten months of that year.

[25] Taking into account that the Applicant's retroactive claim runs from September 2008 to September 2011, I calculate the difference between the Guidelines payments that would have been owing and the payments made to total $11,068 for this period.

[26] In considering the Respondent's conduct during this time, I also take into account the payments that he made to or for Rhea or on her behalf. Based on the Respondent's estimate of the total of those payments ($1500-$2000 annually) and using the midway figure provided by the Respondent, I estimate that during the relevant period he provided $5,535 of such payments.

[27] Even taking those payments into account, there is a deficiency of $5,533 between what the Respondent paid to or for Rhea during this period and what he ought to have paid pursuant to the Guidelines. I consider this amount significant, and find that it constitutes "blameworthy behaviour".

Child's Circumstances

[28] The Applicant submits that Rhea's needs, past and future, have not been met because of the Respondent's failure to pay proper support. However, she gives no particulars to support this claim. The Applicant appears to have been conscientious about meeting Rhea's educational needs. As is seen below, she has–despite her reduced income–contributed substantial amounts to what she perceives to be necessary tutoring for the child.[1]

[29] I note that Rhea is financing her post-secondary educational expenses entirely through OSAP and most of the funds provided are by way of loan. She will have to repay these loans in the future. If the Applicant had been in receipt of proper support payments prior to October 2011, it is reasonable to think that she would have saved and allocated funds to Rhea for her post-secondary educational costs, funds that would have reduced the amount of the loan which the child needed to incur. To that extent, I find that Rhea's circumstances were affected negatively by the Respondent's failure to pay Guideline support.

Hardship to the Respondent

[30] The Respondent submits that a retroactive order would cause him hardship. He pays support of $300 monthly for a 14-year-old child from another relationship, and supports his wife Opal Houlder, who is unable to work because of injuries suffered in a motor vehicle accident. I have no information as to any funds that Mrs. Houlder may receive or stand to receive because of that accident, or any assets which she owns. The Respondent owns no real property, lives in rental accommodation, and has a modest amount of retirement savings with an equal amount of consumer debt.

[31] I find that, depending on the amount of any retroactive award, that such an award could result in hardship to the Respondent. However, any hardship occasioned could be dealt with under a reasonable payment plan.

Conclusion

[32] As the Supreme Court of Canada held in D.B.S. v. S.R.G., "even if the parents choose not to seek variation of an order, depending on why (and how freely) this choice was made, the child may still have the right to receive support in the amount that should have been payable. The certainty offered by a court order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support."[2]

[33] I find that, despite the Applicant's unreasonable delay in commencing her claim, given the blameworthy conduct of the Respondent and the negative effect on Rhea of his failure to pay proper support, a retroactive support order should be made.

[34] The presumptive rule set out in D.B.S. v. S.R.G. as to the commencement date of the order is that it should commence as of the effective date of notice. That date in this case is the date that the Respondent was served with the motion to change. Following the presumptive rule, no retroactive award would be made.

[35] However, the court in D.B.S. v. S.R.G. went on to say that in some cases dates other than the date of effective notice might be appropriate for the commencement date, observing that: "This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child's support entitlement was being met."[3]

[36] In this case, I have found blameworthy conduct by the Respondent. I find that the start date for the retroactive award is September 2008. Taking into account all the relevant circumstances, I find that the appropriate amount of such award is $5,533, representing the difference between the amount paid by the Respondent (both in court-ordered and voluntary payments) between September 2008 and October 2011 and what he should have paid pursuant to the Guidelines. This amount shall be paid at a rate of $350 monthly, commencing August 1, 2012. A support deduction order shall issue. This amount shall bear interests at the rate indicated by the Courts of Justice Act. The Respondent may, if he wishes, prepay all or part of this amount.

Claim for Tutoring Expenses

[37] The Applicant claims a contribution to the expense of Rhea's tutoring in mathematics, which is made retroactively as well as prospectively. The claim covers the period from March 2010, when Rhea was in Grade 11, to the present time, when she is in the second year of a business administration program.

[38] For the reasons set out below, I deny this claim.

Test for Extraordinary Expenses

[39] Section 7(d) of the Guidelines provides that a court has the discretion to order that a payor contribute to an expense such as tutoring if the expense is:

• "extraordinary"—that is, an expense that exceeds the amount which the recipient would reasonably be expected to cover taking into account the table amount of support payable and the recipient's income;
• necessary, in relation to the child's best interests; and
• reasonable, taking into account the means of the parties and the child.[4]

[40] Extraordinary. The Applicant's evidence is that these tutoring expenses total approximately $3500 annually. Rhea had income of under $1000 last year. I have no evidence that she had income prior. Given the Applicant's modest financial circumstances now and in the years in question and the table amount that would be payable, I have no difficulty in finding that such expense is "extraordinary".

[41] Necessary. The evidence of necessity is sparse, but sufficient for me to find the expense for tutoring was necessary for a period of time. The Applicant deposes that the tutoring was needed because Rhea was "falling behind" in mathematics, and she needed tutoring to progress. A letter from the company which provided the tutoring states that the tutoring was required to help the child gain entrance to community college.

[42] Children do not undertake extra instruction in mathematics lightly, or for fun. Rhea and the Applicant were persuaded that she needed such instruction. The fact that the Applicant devoted funds from her reduced income to pay for this instruction is a strong indicator that she was convinced of its necessity. Rhea gained acceptance to a college program after a year of such instruction.

[43] I am persuaded of the necessity of the tutoring expense from March 2010 up to February of 2011, when Rhea received her notice of acceptance to college. I have no evidence as to why it was necessary after that time, and particularly after she started her college program, and I find that the necessity of this expense after February of 2010 has not been established. Therefore, I will consider only the claim with respect to this expense for the period March 2010 to February 2011. That is a retroactive claim.

[44] Reasonable. As for reasonableness, I question whether the amount of $3500 annually is reasonable, given the income and means of each party and the child. However, the evidence before me does not clearly establish the total actual annual cost of the tutoring, but the hourly rates and the usual pattern that Rhea followed in attending in 2010 and 2011 up to April 2011. The cost was $80 weekly for tutoring at two sessions each week. The Applicant's counsel claimed for ten months a year, taking into account summer holidays. It would be reasonable to assume that Rhea did not attend for a further month, taking into account other holidays or breaks. Assuming tutoring took place nine months a year at a cost of $346 per month that would result in a cost of $3114 per year. Using 2010 income figures, that would result in the Respondent contributing to 69% of that cost, in an amount of $2149.

Retroactive Claim

[45] I do not find that the Applicant has established the basis for me to grant her claim for this retroactive special expense, keeping in mind the test in D.B.S. v. S.R.G. The Applicant has not established that she made the request for the Respondent to contribute to this expense prior to her bringing this motion. I have already found that there was an unreasonable delay in her bringing the motion.

[46] I do not find that the Respondent exhibited blameworthy conduct in not contributing to the tutoring expense. A payor parent has the obligation to insure that his child receives proper Guideline support. A child is presumptively entitled to such support in a table amount. But as for a contribution towards special expenses, the fact that such an order is discretionary must be taken into account. In this case, I have no reliable evidence that the Respondent knew that such expense existed. Given that, I cannot find that it constituted blameworthy conduct on his part that he did not contribute to the expense.

[47] Last, I have no evidence that Rhea suffered because the Respondent did not contribute to the cost of tutoring. Rhea received tutoring, at the cost of the Applicant.

Costs

[48] If costs are sought by either party, the party seeking costs should make submissions no longer than 8 pages in length, with any offer to settle attached, within 15 days; the other party may respond within a further 15 days.

Released: August 7, 2012

Signed: "Justice E.B. Murray"

Footnotes

[1] The Applicant's annual income declined as a result of injury and illness from $65,000 in 2009 to $27,500 in 2010 to $14,500 in 2011 and 2012.

[2] Para. 64

[3] Para. 124

[4] S 7(d) also requires the court to take into account the spending pattern of the parties prior to separation. That factor is not relevant here, as the parties never cohabited.