Court File and Parties

Court File No.: Toronto D 55355/11 Date: 2013-12-17 Ontario Court of Justice

Between: Ifeanyi Samson Obodoechina, Applicant — AND — Patience Ayetor, Respondent

Before: Justice Carole Curtis

Heard on:

• 21 and 22 November 2012
• 31 December 2012
• 4 January 2013
• 7 and 25 March 2013
• 8 and 17 May 2013
• 12 June 2013
• 2 July 2013

Decision released: 17 December 2013

Counsel:

• Okechukwu Benjamin Vincents . . . . . . . . . . . . . . . . . . . . . for the Applicant
• Esther O. Abraham . . . . . . . . . . . . . . . . . . . . . . . . . . for the Respondent

CURTIS J.:

INDEX

1. Background
2. Conduct of the Trial
3. Custody and Access
4. Child Support
   • a. The Law Regarding the Father's Income
   • b. Child Support Analysis
   • c. What Is The Proper Start Date For Child Support?
     • i. Delay by the Recipient
     • ii. Blameworthy Conduct of the Payor
     • iii. Hardship in The Circumstances of the Child
     • iv. Hardship in The Circumstances of the Payor
     • v. Start Date of the Order
5. Future Litigation
6. Orders
   • a. Custody and Access
   • b. Child Support
   • c. Future Litigation
   • d. Costs

BACKGROUND

[1] This ten day trial dealt with the usual issues in family law cases, custody and access, and child support.

[2] The father claimed:

• Joint custody;
• Specified access;
• A non-removal order regarding the children;
• Copies of the children's identification documents;
• Access to the children's service providers including schools, doctors and childcare; and,
• No order for child support until after he graduates from school.

At trial the father claimed shared parenting, primary residence to continue to be with the mother, specified access to him to gradually increase to full week-ends at least once per month, and no child support.

[3] The mother claimed:

• Sole custody;
• No access to the father;
• Orders regarding the children's passports and travelling without the father's consent; and,
• Child support starting on the date of separation.

At trial the mother claimed sole custody, supervised and specified graduated access for the father, and child support of $591 per month for three children on imputed income to the father of $30,000 starting in August 2008.

[4] Ifeanyi Samson Obodoechina is the father ("the father"), born 22 July 1975, and 38 years old. He was born in Nigeria and came to Canada in 1997.

[5] Patience Ayetor is the mother ("the mother"), born 24 September 1982 and 31 years old. She was born in Ghana.

[6] The parents were married on 26 August 2006.

[7] There are three children of the marriage:

• Jessica, born 24 August 2004 (9 years old),
• Jayden, born 7 March 2008 (5 years old); and,
• Jenalle, born 12 March 2010 (3 years old).

[8] The father lives in Sudbury, and the mother lives in Toronto with the children. The parents separated in August 2008 when the father moved to Sudbury to go to school. Although separated, the parents continued a relationship, as the third child was conceived and born after they separated.

[9] The oldest child, Jessica, was born two years before the parents got married. She lived with her mother during that time. The youngest child Jenalle was born more than a year after the parents separated. She has never lived with her father.

[10] The father has a child in another relationship, Jada, born 19 January 2005, now 8 years old (about one year younger than Jessica, the oldest child of the marriage). The mother learned about the other relationship and about Jada, but after Jada was born, she continued the relationship with the father, married him, and had two more children with him.

[11] The parents are still married, but the father has been engaged to another woman since December 2012, and has posted information and pictures about this on the Internet. The father and his new partner are expecting a baby.

[12] These are the relevant temporary orders in this case:

• On 20 March 2012, Sherr, J. made a temporary without prejudice order for child support of $177 per month, on imputed income of $14,000, starting 1 April 2012; and,
• On 17 July 2012, at a contested motion, Sherr, J., made a temporary custody order to the mother, children's residence to remain in Ontario, with specified temporary access to the father (one week-end per month, on Saturday and Sunday from 12 noon to 4 or 5 p.m. each day), and an order under the Children's Law Reform Act, R.S.O. 1990, c. C.-12, as amended (C.L.R.A.), s. 28 preventing the father from coming within 200 metres of the children's school or daycare.

CONDUCT OF THE TRIAL

[13] The issues at trial were simple and straightforward: custody and access, and child support.

[14] This case should never have required ten days for trial. This was a two day trial, stretched out, by the lawyers and the parties, to ten days. The trial lasted ten days despite the fact that the parties were ordered to produce the evidence in chief for their witnesses by affidavit (the mother filed three affidavits and the father filed five). It is unconscionable that this trial lasted for as many trial days as it did.

[15] At the trial management conference, the lawyers were directed to prepare a Statement of Agreed Facts, which was to include all the evidence that could be easily agreed on (names, dates, litigation history, relationship history, etc.). The Statement of Agreed Facts provided by the lawyers contained four paragraphs only, and referred only to the dates of the relationship and the children's dates of birth. It was completely inadequate, and not what was ordered.

[16] The conduct of this trial and the presentation of the evidence by the lawyers involved were badly handled on both sides.

[17] Each time the trial was adjourned, the parties were offered a range of possible continuation dates, some of which were very soon. Repeatedly, the lawyers were unavailable to appear on those dates, and unwilling to make themselves available for those dates, even when requested by the court to do so.

[18] The parents were on the witness stand for several days each. They were each cross-examined at length. The parents' own evidence was convoluted, often evasive, and focused on verbatim descriptions of the confrontations they had with each other. The evidence of both parents was very hard to follow and contained too much detail. The evidence of both did not follow a timeline. Both parents seemed to think the trial was a public forum in which to criticize, belittle and humiliate the other parent. Much of the evidence of both parents (in fact, the majority of the evidence given by both) was irrelevant to the issues before the court.

[19] There were inconsistencies in the evidence of both parents and the court had doubts about the truth of some of the evidence of each parent. There were credibility problems with both parent's evidence. It appears that the father has participated in fraudulent behaviour to obtain money, and the mother may have as well.

[20] The lawyers did not control their clients in the presentation of their evidence, nor in their conduct during the trial. The mother was often seen to be signalling her witnesses about their evidence, even after she was warned by the court to stop. It appeared as though both parents just gave evidence about whatever popped into their heads at the moment, and that neither of the parents had even been prepared by their lawyers for the giving of their evidence.

[21] The trial was difficult and fractious. There was much hostility and repeated confrontation during the trial. The mother was very upset during cross-examination and was angry, aggressive, very loud, and was yelling at the father's lawyer. Both the mother and the father's lawyer used inappropriate tones of voice. There was confrontation between the lawyers repeatedly throughout the trial.

[22] The court was left sifting through many days of irrelevant evidence to try to reduce the large amount of irrelevant information presented to the facts relevant and necessary to decide the issues before the court. This should not be the case where there are lawyers acting on both sides.

[23] Rule 2 of the Family Law Rules, O. Reg. 114/99, as amended, is very clear. The lawyers and the parties in family law litigation all have a positive obligation to conduct themselves and the court case in ways which promote the prime directive. That did not happen in this case. The parents did not behave in this way. And significantly, and surprisingly, the lawyers did not behave in this way.

CUSTODY AND ACCESS

[24] The mother has been the primary caregiver of the three children since their births.

[25] The father has been in and out of their lives for many years now, and has lived in Sudbury, quite far away, since 2008. The father chose to move away. The father lived with these children for only short periods of time. The last time he lived with any of the children was more than five years ago. When he moved to Sudbury, Jessica (now 9) was 4 years old and Jayden (now 5) was 5 months old. He has never lived with Jenalle (now 3).

[26] The father's access to the children has been infrequent, although he says it has been regular (although sometimes conflicted and denied). Even on his evidence, he has seen the children about once per month (or less) while living in Sudbury. This has been more consistent since the order of Sherr, J. for access in July 2012.

[27] The father gave evidence that his driver's license has been suspended on several occasions, and that since separation he was driving around Toronto and was driving with the children in the car without a valid license. His license was suspended again in September 2012, and someone else drives him now.

[28] The father stated that he needs joint custody in order to assist him in his claim for additional funds on behalf of his children from OSAP[1]. He pressured the mother to sign an OSAP application in 2009 (when the children were living with the mother) which stated that he had custody or joint custody of the children.

[29] The parent's relationship was and still is volatile, and full of arguments. Much of the evidence each of them gave was a verbatim recounting of various confrontations they had.

[30] The court finds that the father has been physically abusive and violent to the mother during the marriage. This evidence came from both the mother and from the mother's niece, who has lived with the mother since about 2004 (during the marriage, and during the time the mother and the father lived together), and who witnessed the father choking the mother. Both the mother's niece and the mother's sister gave evidence that when they tried to intervene during an attack by the father towards the mother, the father hit each of them in the face, with a back-hand. The maternal aunt says that the children Jessica and Jayden were present during this. The police were at the home several times. The mother says she was reluctant to call the police, as the father threatened that he would withdraw his sponsorship. The court found this portion of the mother's evidence credible.

[31] Sherr, J. granted the mother leave to bring a summary judgment motion regarding custody on 7 May 2012, however, she did not. She should have. The issue of custody of these children should not have gone to trial. There was no triable issue regarding custody.

[32] This is not a case for joint custody. There is a long-term status quo with the children living with the mother, and the father living far away (Sudbury is 400 kilometres from Toronto, a driving distance of about five hours). The father chose to move from Toronto in 2008 and to leave the children with the mother in Toronto. He did not start a court case about custody and access for several years after he left Toronto. This is a clear case for sole custody to the mother.

[33] There was almost no evidence about the children, despite the fact that the trial lasted ten days, and that each of the parents gave evidence over several days. There was no evidence about the needs of the children, or which parent was better suited to meet those needs. In his evidence about access, the father repeatedly referred to his "need" to see the children. He did not give evidence at all about the children or their needs.

[34] The father has been seeing the children about one week-end per month, for daytime visits. At trial the mother claimed that the father's access should be limited to supervised access. There was really no basis for this claim, and insufficient evidence to support it. The father has had unsupervised access for several years, and although there has been conflict between the parents surrounding access and at access exchanges, the access has been acceptable.

[35] These parents continue to have high levels of conflict, as was evidenced by their behaviour at the trial, and their behaviour at access exchanges, and they will benefit from a clear schedule. The conflict between them takes place in the presence of the children and is harmful to the children. This level of conflict must stop. They need clear and detailed custody and access orders to create structure and ensure reasonable expectations by both parents. These orders need to be structured to minimize any possible areas for future conflict (for example, like passports and travel).

[36] The father is living in Sudbury, however, and only comes to Toronto about once per month. When the father has the children, he takes them to his sister's home in Brampton, where it appears they are all welcome. The mother may have been interfering with the access, and recently, the children have not wanted to see their father. The children are now 9, 5 and 3 years old, and absent safety concerns, children that young do not get to decide whether they see their parent. Taking into account the factors regarding the children's best interests set out in the C.L.R.A. s. 24(2), it is time for the access to be more regularized. While he is living in Sudbury, the father shall have week-end access, one week-end per month from 10 a.m. Saturday until 4 p.m. Sunday, in Toronto. The father may take the children to his sister's home in Brampton.

[37] There have been problems with the late pick-up and return of the children, which is very disruptive, particularly to the schedules of young children, and is disrespectful to the other parent. The father shall not pick up nor return the children more than 15 minutes after the scheduled time, unless the parents agree, or in case of emergency, when they have communicated.

CHILD SUPPORT

[38] The mother specifically claimed retroactive child support starting from the date of separation.

[39] The father is a student at Cambrian College in Sudbury in the four year Bachelor of Science Nursing program. Although he left Toronto to start school in Sudbury in August 2008, the father's evidence is that he is in the second year of the nursing program. He says he is also a student at Laurentian University in the gerontology program. He says his expected graduation date is April 2016. He also works part-time in Sudbury, as a personal support worker at St. Elizabeth Health Care.

[40] The mother is also a student, at Seneca College, in the first year of a four year B.Sc. in nursing program.

[41] The father's daughter Jada lives with him in Sudbury (since the start of 2012). Jada's mother lives in Mississauga. As well, the father's two nephews (ages 11 and 9 years) live with him in Sudbury. There was no evidence he receives money from any of the parents to assist in the support of his daughter or his nephews.

[42] The evidence about the father's income was extremely difficult to follow. Neither the father nor his lawyer had properly prepared for the presentation of the evidence required at a trial regarding child support. It was difficult to determine what income the father was earning, from what sources and in what years. This may have been intentional on the father's part. However, the presentation of the father's income evidence was so badly done that it is hard to conceive of this as planned approach.

[43] As a student, which the father says he has been since 2008, the father has access to various sources of money from the government. The court (not the father, nor his lawyer, nor the mother's lawyer) prepared the following chart to try to sort out the money actually received by the father and the father's income for child support purposes. The father confirmed in his evidence that this was in fact the money he actually received, from these sources, during these years.

	2008	2009	2010	2011	2012
Line 150 income	15,808	3,328	6,900	18,208	10,537
Employment income	15,808 EI	3,328 EI
OSAP		15,559	12,451	10,975	10,537
Grants, bursaries		1,977	3,745	14,079	1,988
Ontario student grant			5,610	9,994	12,525
Total income	15,808	20,864	28,706	42,281

[44] The father says that the court should use the line 150 income numbers for the years 2008 to 2012 in determining his income for child support purposes. The father did not provide any income information for 2013.

[45] The father said that he has a learning disability which entitles him to additional sources of government income. He used the services of a captioning interpreter throughout the trial. However, when asked, the father could not tell the court what his disability was. He could not name it. He did not describe it. He was unable to describe the consequences in his daily life from his disability. Nor could he tell the court what impact his disability had on his ability to learn. He could not describe the consequences of his disability for school or work, other than he has a need to be in quiet room for an examination and to read material ahead of time (which would, no doubt, benefit many students). He produced no medical evidence regarding his disability. He was not, however, relying on his disability to suggest he had a limited capacity to earn income. The mother said that the father is a healthy man and is not disabled.

[46] The parents have an unusual relationship with money, considering they are both relying heavily on public funds to support themselves and their children. The father gave evidence that the mother spent about $10,000 on the christening party for Jenalle (which was not denied by the mother). He gave evidence that he bought a suit at Harry Rosen clothing store for $900 and spent $200 on Hugo Boss clothes in August 2011. In October 2012, the father told the mother that he had paid his lawyer $8,000, and he did not deny this at trial. The court accepts that the parents spent this money.

[47] The father says he lost some time at school due to allegations made by the mother that he had sexually abused one of the children. The allegations were made in an affidavit filed in this court case in November 2011, and related to an incident which occurred in 2007. He told his school of these allegations, as he was required to do, and he had to withdraw from the nursing program until these allegations were resolved. No criminal charges were laid. These allegations were not part of the custody or access case at trial.

THE LAW REGARDING THE FATHER'S INCOME

[48] These are the child support issues in this case:

a) what is the father's income for child support purposes, that is, not what is he earning, but rather, whether there should be income imputed to him for the purposes of child support; and,

b) what is the proper start date for child support.

[49] The purpose of the Child Support Guidelines, Ont. Reg. 391/97, as amended, is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency: Lee v. Lee

[50] Section 19(1) of the Child Support Guidelines addresses imputing income:

19.(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse;

[51] Section 1 of the Guidelines stipulates that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. The need to ensure appropriate financial support for the children is dealt with by imputing income. 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 legal obligation, a parent must earn what he is capable of earning: Drygala v. Pauli, 2002 CarswellOnt 3228, 29 R.F.L. (5th) 293, [2002] W.D.F.L. 406, 219 D.L.R. (4th) 319, 61 O.R. (3d) 711, 164 O.A.C. 241 (Ont. C.A.), para 31, 32, 35.

[52] There is a duty to seek employment in a case where a parent is healthy: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 38.

[53] The payor is intentionally under-employed if that parent chooses to earn less than he is capable of earning. That parent is intentionally unemployed when he chooses not to work when capable of earning an income: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 28.

[54] Section 19(1)(a) of the Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed. When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity: Drygala v. Pauli, supra, 2002 (Ont. C.A.).

[55] A parent cannot pursue an improvident career path at the expense of the child: Evans v. Gravely, [2000] O.J. No. 4748 (Ont. S.C.J.), para. 10.

[56] A parent cannot avoid child support obligations by a self-induced reduction of income: Weir v. Therrien, [2001] O.J. No. 2612, 20 R.F.L. (5th) 199, 106 A.C.W.S. (3d) 494 (Ont. Sup. Ct.), para 25.

[57] The court has a broad discretion to impute income where the father is not working to his potential. In exercising discretion, a court will bear in mind the objectives of the guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. The fundamental principle is that the court must estimate the actual means which the parent has available for child support.

[58] In Duffy v. Duffy, [2009] N.J. No. 245, 2009 NLCA 48, 73 R.F.L. (6th) 233, 289 Nfld. & P.E.I.R. 132, 2009 CarswellNfld 211, 179 A.C.W.S. (3d) 879 (Nfld & Lab. S.C. – C.A.), para. 35, the Newfoundland and Labrador Court of Appeal set out a list of general principles to be considered regarding child support and when determining whether to impute income:

1. The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices;

2. A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children;

3. A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent;

4. Imputing income to a parent on the basis that the parent is "intentionally under-employed or unemployed" does not incorporate a requirement for proof of bad faith. "Intentionally" in this context clarifies that the provision does not apply to situations beyond the parent's control;

5. The determination to impute income is discretionary, as the court considers appropriate in the circumstances;

6. Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision;

7. A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action; and,

8. A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.

[59] The support recipient bears the burden of proving that the support payer is intentionally under-employed. If the court is not satisfied that the support payer is intentionally under-employed, the inquiry ends there. Once you establish underemployment, the onus shifts to the payor to show one of the exceptions of reasonableness. Parents can take jobs with less money, as long as the decision is reasonable. The onus of proving the payor is intentionally underemployed is on the recipient. If proved, the onus then shifts to the payor to establish an acceptable reason. Intentional underemployment requires a voluntary act by the respondent: Rilli v. Rilli, [2006] O.J. No. 4142, 2006 CarswellOnt 6335, 151 A.C.W.S. (3d) 1130 (Ont. Sup. Ct.), para 18.

[60] There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 38.

[61] The court must first determine whether the educational needs are reasonable. This involves a consideration of the course of study. A spouse is not to be excused from his child support obligations in furtherance of unrealistic or unproductive career aspiration: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 39.

[62] Section 19(1)(a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the court determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under-employment is required by the reasonable educational needs of a spouse: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 40.

[63] The burden of proof is upon the spouse pursuing education as he is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his educational program. He will have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 41.

[64] A parent cannot be excused from his child support obligations in furtherance of unrealistic or unproductive career aspirations. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income.

[65] The father's plan to take nursing training to become a nurse was a suitable educational goal. However, he has already been in school in Sudbury for five years, and he told the court he is in second year of a four year program and expects to graduate in 2016. That is a very long time (eight years) to obtain a four year degree. And his evidence and his position at trial are that he should be paying no child support while he is in school. In fact, over the five years he has been in school so far, he has paid no child support.

[66] The court finds that the father is under-employed. His excuse (for paying no child support) that he is in school is only a partial explanation, and is not a satisfactory explanation. Once the court determines that the father is under-employed, the next step is to determine what the father is capable of earning.

[67] Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 44.

[68] When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent, the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands, and the hourly rate that the parent could reasonably be expected to obtain: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 45.

[69] When imputing income, the court must consider the amount that can be earned if a person is working to capacity while pursuing a reasonable educational objective. How is a court to decide that when, typically, there is little information provided on what the parent could earn by way of part-time or summer employment? Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 46.

CHILD SUPPORT ANALYSIS

[70] The father has not supported the children while he has been living in Sudbury. He believes that he has no child support obligation at present, because he is in school. Several witnesses gave evidence that the mother often did not have enough money to support the children, or to buy enough food, and two witnesses (the maternal aunt and a family friend) said that they helped her financially. The mother's niece gave evidence that she lives with the mother and helps often with the children. It was clear that the family friend, in particular, has helped the mother financially substantially, including providing her with a car to use to take the children around.

[71] The father's position at trial (and in his pleadings) regarding child support is quite surprising. His position is that he should not have to pay any child support while he is in school. That is not supportable in law. Both parents have the obligation to contribute to the support of their children.

[72] The father has been in school quite a long time already, and does not see himself graduating until 2016. While in school, he has received money from various government sources, has received employment insurance, and has worked part-time as a personal support worker.

[73] The father has been quite successful in applying for and obtaining various forms of government financial assistance while he is in school. There was no evidence at trial about his 2013 income. Over the three years he was eligible for assistance from OSAP, he averaged over $14,000 per year in OSAP grants. Over the four years in which he received other grants and bursaries, he averaged $4,426 per year from this source. In 2010 he obtained an additional Ontario student grant of $5,610. Over the most recent three years for which this information is available (2010 to 2012) he has received an average of $27,837 per year from various sources. In 2011 he received $42,281 from various sources.

[74] The father has clearly failed to recognize his child support obligation. He has made choices which contributed to his current financial situation. He is intentionally under-employed. His children should not be subsidising his desire to stay in school for such a prolonged period. In determining an amount to impute as income for the father for child support purposes, the court reviewed the age, education, experience, skills and health of the father, as well as the father's past earning history, the amount of income the father could earn if he worked to capacity, the money he has actually received over the last three years, his recent work history (as a part-time caregiver), his part time attendance at school, and his ability to earn income, and determined an amount that is fair and reasonable. Income of $30,000 shall be imputed to the father.

WHAT IS THE PROPER START DATE FOR CHILD SUPPORT?

[75] Retroactive child support must be considered in the framework of the principles set out by the Supreme Court of Canada in the D.B.S. decisions: D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, J.E. 2006-1543, [2006] A.W.L.D. 2466, [2006] A.W.L.D. 2467, [2006] W.D.F.L. 2909, [2006] W.D.F.L. 2917, 61 Alta. L.R. (4th) 1, 351 N.R. 201, [2006] 10 W.W.R. 379 (S.C.C.) (referred to as "D.B.S.", or "the D.B.S. cases").

[76] The umbrella determination in the D.B.S. cases is this: courts have the jurisdiction to award retroactive child support, and, in appropriate cases they should do so.

[77] These are the framework principles set out in the D.B.S. decision:

• The obligation of support arises automatically upon birth: D.B.S., para. 36-37;
• Child support is the right of the child: D.B.S., para. 60;
• The term "retroactive" is misleading in the technical sense, as these "retroactive" awards do not hold parents to a legal standard that did not exist at the relevant time: D.B.S., para. 2;
• The specific amounts of child support owed will vary based upon the income of the payor parent;
• As income levels increase or decrease so will the parents' contributions to the needs of the children, just as they would if the family had remained together;
• Under the general Guidelines regime, the underlying theory is that the support obligation itself should fluctuate with the payor parent's income;
• Under the general Guidelines regime, when a payor parent does not increase the amount of his support when his income increases, it is the child who loses: the child is the one who is entitled to a greater quantum of support in absolute terms: D.B.S., para. 43, 45, 47;
• The ultimate goal must be to ensure that children benefit from the support they are owed at the time when they are owed it. Any incentives for payor parents to be deficient in meeting their obligations should be eliminated: D.B.S., para. 4;
• It is clear that retroactive awards cannot simply be regarded as exceptional orders to be made in exceptional circumstances: D.B.S., para. 5;
• Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility: D.B.S., para. 5;
• Courts must be open to ordering retroactive support where fairness to children dictates it, but should also be mindful of the certainty that fairness to payor parents often demands. It is only after a detailed examination of the facts in a particular case that the appropriateness of a retroactive award can be evaluated: D.B.S., para. 6; and,
• A retroactive child support order does not involve imposing an obligation on a payor parent that did not exist at the time for which support is being claimed: D.B.S., para. 68.

[78] In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances in front of it. In the D.B.S. cases, the court sets out these factors for a court to consider in determining whether to make a retroactive child support order:

a) Has the recipient parent supplied a reasonable excuse for delay;

b) the conduct of the payor;

c) circumstances of the child; and

d) hardship for the payor.

There is no priority to these factors, none of these factors is decisive and they should all be considered. (D.B.S., para. 133).

[79] A trial judge has the discretion to award retroactive child support that is fit and just in the circumstances. As part of the exercise of discretion, the trial judge must consider the fairness of such an award, including whether it will create an unreasonable debt obligation on the part of the payor: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 54.

[80] The purpose of child support is to assist the custodial parent in meeting the day-to-day expenses of raising children. A party seeking retroactive child support must provide evidence that the child suffered from a lack of financial support during the period in question. Ability to pay, as well as need, must be considered by the trial judge in the exercise of his or her discretion: Brett v. Brett (1999), 44 O.R. (3d) 61, 46 R.F.L. (4th) 433 (C.A.); Hoar v. Hoar (1993), 45 R.F.L. (3d) 105 (Ont. C.A.).

DELAY BY THE RECIPIENT

[81] The parents separated in August 2008 and the mother did not bring a claim for child support until her Answer was filed in November 2011. Although separated, the parents continued a relationship, as the third child was conceived and born after they separated (Jenalle was born 12 March 2010). There was no evidence as to when the relationship actually ended. Both parents used August 2008 as the separation date in their pleadings and in the Statement of Agreed Facts.

[82] There was no explanation offered as to why the mother waited to claim child support. The father was attending school in Sudbury from fall of 2008 and was not paying child support for the children. The mother did not know whether he was receiving money, how much, or from what sources. Indeed, it was very difficult to get that information from the father even during a trial about child support.

[83] As there was no evidence as to the actual date of the end of the relationship, it is not possible to determine how long the mother delayed in seeking child support. Even if the delay were to be found to be three years (from August 2008 to November 2011), this is only one factor in the determination of the appropriateness of retroactive child support. Children should not be punished for the inaction of their parent.

[84] The delay in this case is over-ridden by the blameworthy conduct of the father and the hardship to the children (both are dealt with below). The fact that the father paid no child support for many years raises blameworthy conduct to a different level.

BLAMEWORTHY CONDUCT OF THE PAYOR

[85] These are the principles from the D.B.S. cases about blameworthy conduct:

• The payor parent's interest in certainty is least compelling where he engaged in blameworthy conduct: D.B.S., para. 105.
• Blameworthy conduct is anything that privileges the payor parent's own interests over his children's right to an appropriate amount of support: D.B.S., para. 106.
• A payor parent should not be permitted to profit from his wrongdoing: D.B.S., para. 125.
• No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his obligations, he might still be acting in a blameworthy manner if he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his support obligation to his children should not be allowed to profit from such conduct: D.B.S., para. 107; and,
• Whether a payor parent is engaging in blameworthy conduct is a subjective question: D.B.S., para. 108.

[86] The father engaged in blameworthy conduct in not paying child support since the separation in 2008. Not only did the father not pay child support, he took the position, and continued to take the position up to and including the trial, that he had no legal obligation to pay child support as he was in school.

HARDSHIP IN THE CIRCUMSTANCES OF THE CHILD

[87] Courts should consider the present circumstances of the child, as well as the past circumstances of the child, in deciding whether a retroactive award is justified: D.B.S., para. 110.

[88] The father made no child support payments over a long period of time. These children experienced a diminished standard of living since he left in 2008. This is made clear by the fact that others who had no legal obligation to support the children (the maternal aunt, the mother's niece, and a family friend) contributed financially (and in other ways) to the support of the children. However, the existence of contributions from others in the children's lives does not change the obligation of a parent to financially support the children.

HARDSHIP IN THE CIRCUMSTANCES OF THE PAYOR

[89] Although the court must take into account any hardship to the payor that a retroactive order might produce, usually such hardship can be addressed in crafting the order carefully, and in including a payment plan for the payment of any arrears owing.

START DATE OF THE ORDER

[90] The court in D.B.S. identified four choices for the date to which the award should be retroactive:

a) the date when an application was made to a court;

b) the date when formal notice was given to the payor parent;

c) the date when effective notice was given to the payor parent; or,

d) the date when the amount of child support should have increased.

[91] The court adopted the date of effective notice as a general rule for the commencement date of retroactive support awards: D.B.S., para. 118.

[92] "Effective notice" means any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his interest in certainty becomes less compelling: D.B.S., para. 121.

[93] Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date of the award: D.B.S., para. 134.

[94] Once the payor parent engages in in blameworthy conduct, there can be no claim that he reasonably believed his child's support entitlement was being met: D.B.S., para. 124.

[95] In this case, the date of formal notice is 22 November 2011 when the mother filed her Answer and claimed child support, retroactive to the date of separation. However, the father left the family in August 2008 to move to Sudbury. He did not pay child support. He knew that the mother needed financial help. He was not meeting his financial obligation and his legal obligation to his children. This is blameworthy conduct.

[96] In the D.B.S. cases, the Supreme Court of Canada inserted a new test in child support cases, that is, an umbrella test of "fairness", into this analysis. The court repeatedly refers to the "balance between certainty and flexibility" in this area of the law, describing it as fairness to children and certainty for the payor.

[97] The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility. This requires the judge to examine all the factors and weigh those factors, keeping in mind the need to balance these interests. It is curious that the S.C.C. suggests that the interests of the child in fairness is a competing interest to that of the parent in certainty. Surely the child's need for fairness should not be competing with the parent's needs, and should have a higher priority.

[98] On an overall fairness analysis of all the circumstances in this case, it is fair, just and appropriate that the father pay child support from the date of separation.

FUTURE LITIGATION

[99] Rule 2 sets out detailed requirements for the court dealing with family law cases.

PRIMARY OBJECTIVE

2. (2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2).

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).

DUTY TO PROMOTE PRIMARY OBJECTIVE

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. O. Reg. 114/99, r. 2 (4).

DUTY TO MANAGE CASES

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference. O. Reg. 114/99, r. 2 (5).

[100] The court must deal with cases justly (Rule 2(2)). That includes ensuring fairness in procedure to all, saving expense and time, and dealing with cases in a proportional way, that is, in proportion to the importance and complexity of the case (Rule 2(3)(a), (b), and (c)).

[101] As well, courts must measure the use of resources of any given case, and weigh and balance that against the demands of other cases for those resources (Rule 2(3)(d)).

[102] The court is required to apply the Family Law Rules to promote the prime directive of the rules, to deal with cases justly (Rule 2(4)).

[103] These parents have had the benefit of 10 days of trial time. It was a full and detailed hearing of the issues between them. Much of it was wasted time. Some of the issues in the trial (joint custody) should never have gone to trial. Both parents have behaved in ways which contribute to the on-going litigation and the on-going hostility. These parents have had more than enough access to the courts regarding their dispute. The court does not exist only for them, to use as part of their long-standing and on-going conflict. That is not appropriate, and it must end.

[104] At some point, it is time for the parents to resolve their disputes in other ways. There are many other families who need access to the court. The family law justice system is a precious and expensive resource. This family has had its fair share of it. It is time to put restrictions on their access to the courts.

ORDERS

CUSTODY AND ACCESS

[105] The mother shall have sole custody of the three children.

[106] The father shall have the following access while he is living in Sudbury:

a) One week-end per month, from 10.00 a.m. Saturday until 4 p.m. Sunday, in Toronto;

b) Access exchanges shall be at a fast food restaurant nearest to where the children are living;

c) Summer access to be arranged by the parents before 1 May each year. Starting in 2015, for one week each summer until the youngest child turns 8 years old, after which the summer access shall be for two non-consecutive weeks. This access may be exercised in Sudbury;

d) The children shall always spend Mother's Day with the mother and may spend Father's Day with the father, no matter what the usual schedule would require;

e) The father shall not be more than 15 minutes late for the start of the visits, and shall not return the children more than 15 minutes late from visits, unless the parents agree, or in case of emergency, to be communicated to the mother as soon as possible. If the father is later than 15 minutes without suitable explanation, that visit is cancelled. If the father returns the children more than 15 minutes late, the following visit is cancelled; and,

f) Any other times that the parents can agree on.

[107] The father shall be responsible for all access transportation. The father shall not allow the children to be in a car driven by anyone who does not hold a valid current driver's license. The father shall not transport the children in any car which does not have the proper car seats for the ages and stages of the children.

[108] If the father moves from Sudbury, closer to Toronto, and moves more than 100 kilometres, that move shall be considered a material change in circumstances for the purposes of reviewing access.

[109] The father shall have access to all information about the children's health, education and general welfare, pursuant to s. 20(5) C.L.R.A.

[110] Other than summer access in Sudbury, the father shall not remove the children from Toronto or Peel without the mother's prior written consent or court order.

[111] The mother may apply for the children's passports and other government documents without the father's consent.

[112] The mother may travel with the children outside Canada without the father's consent.

CHILD SUPPORT

[113] The father shall pay child support for three children of $591 per month, on imputed income of $30,000, from 1 August 2008.

[114] The father shall advise the mother in writing within 10 days of any and every change of employment, and of getting employment, including the amount paid to him, the hours, and the employer's name.

[115] The father shall produce to the mother every year, by 1 June, starting in 2014, copies of his Income Tax Returns and Notices of Assessment, pursuant to s. 24.1 and the disclosure requirements of the Child Support Guidelines.

[116] The father shall pay arrears of child support at $250 per month, starting 1 January 2014. If any payments for table amount or arrears are not paid in full, the arrears are then due and owing immediately, and the Family Responsibility Office may take whatever steps to enforce the order they determine to be appropriate. Nothing in this order prevents the Family Responsibility Office from enforcing using garnishments.

[117] All other claims by either parent not specifically addressed are dismissed.

FUTURE LITIGATION

[118] Neither parent may bring a motion to change without leave of the court, obtained in advance, on request using a Form 14B, with two pages maximum in support.

COSTS

[119] There are two previous costs orders which do not appear to have been paid. The father owes the mother the following amounts in costs:

• Order of Zuker, J. made 29 November 2011 for $400; and,
• Order of Sherr, J. made 20 March 2012 for $400.

[120] The father shall pay all outstanding costs before any request is made for leave to bring a motion to change.

[121] Both parties asked for costs at the end of the trial, and asked to make submissions regarding costs. The conduct of the parties during the trial strongly suggests that this is not a case in which either parent should be rewarded for their behaviour with an award of costs. However, if either of the parents insists on claiming costs, this is the timetable for written submissions:

a) written submissions of two pages maximum, accompanied by any offers to settle, and summary of the time spent;

b) submissions to be delivered to the attention of the trial judge, to the Office of the Trial Co-ordinator on the second floor;

c) father to serve and file by Friday 10 January 2014; and,

d) mother to serve and file by Friday 31 January 2014.

Released: 17 December 2013

Justice Carole Curtis

[1] Ontario Student Awards Program

[2] Ontario Student Awards Program