Court File and Parties
Court File No.: D80967/15 Date: 2016-08-26
Ontario Court of Justice
Between:
Maria De Fatima Desousa E Silva Applicant
- and -
Filipe Aleixo Queiroz Respondent
Counsel:
- Darlene Rites, for the Applicant
- Gagan Sekhon, for the Respondent
Heard: August 11, 2016
Justice: S.B. Sherr
Reasons for Decision
Part One – Introduction
[1] This trial was about the respondent's (the father) child and spousal support obligations.
[2] The applicant (the mother) asked the court to impute the father's annual income at $74,261 for support purposes. She sought child support for the parties' 9-year-old child (the child) and spousal support for herself, both retroactive to May 1, 2014. She also asked that the father pay special expenses of the child pursuant to section 7 (section 7 expenses) of the Child Support Guidelines (the guidelines).
[3] The father asked the court to impute his income at $56,817 per annum to calculate his support obligations on an ongoing basis. He proposed to pay the guideline table amount of child support (guideline table amount) at this income starting on September 1, 2016.[1] The father asked for a reimbursement of $3,477 for child support he claims that he has overpaid the mother since June of 2014. The father asked the court to impute the mother's annual income at $30,000 for the purpose of calculating support obligations. He asked that no spousal support order be made.
[4] The issues for this court to determine are:
a) What annual incomes should be used for the parties for the purpose of calculating support? Should income be imputed to one or both of them?
b) Should the father pay spousal support to the mother? If so, how much?
c) What is the father's section 7 expense obligation?
d) Should a retroactive support order be made? If so, when should it start?
e) Has the father overpaid support? If so, how much has he overpaid?
Part Two – Background Facts
[5] The parties are both 43 years old.
[6] The parties married in 2005 and separated in the spring of 2014. They cohabited for three years prior to their marriage.
[7] The parties have the one child. He resides with the mother.
[8] The mother's 20-year-old son from a previous relationship also lives with her.
[9] At the time of the parties' separation, the father worked as a bus driver for the TTC and the mother ran a flower shop. The mother's business was in financial trouble and she closed the flower shop in the fall of 2014.
[10] The father was placed on light duties by the TTC on April 21, 2015, as he was struggling with sleep apnea. This resulted in a reduction in his total income in 2015 to $61,412 from the $74,261 he earned in 2014.
[11] The father testified that the TTC had medically cleared him (with respect to the sleep apnea issue) to return to his job as a bus driver as of January 27, 2016. He said that he chose instead to take a lower paying job with the TTC as a customer service representative on February 21, 2016. He deposed that this permitted him to spend more time with the child. The annual salary for the new job was $49,322.
[12] The father was dismissed for cause from the TTC on April 27, 2016. He is presently in receipt of Employment Insurance (EI) benefits.
[13] The mother worked at a restaurant after her business went under in 2014. In 2015, she worked part-time at a bakery and part-time with the Toronto Police Services (TPS) as a school crossing guard. The mother's 2015 income was $17,653.
[14] The mother injured herself in an accident on a TTC bus on February 26, 2016 and was off work for two months. She returned to her job as a crossing guard on May 2, 2016. She has also received EI benefits. She deposed that she is still physically unable to work at the bakery.
[15] The father did not start paying the mother support until September of 2014.
[16] The mother deposed that the father paid her $6,680 in 2014, $9,538 in 2015 and $1,444 in 2016.[2] The father deposed that he has paid the mother $2,290 in 2016. The court preferred the mother's evidence. She gave credible evidence that one of the father's payments of $501 was returned N.S.F. The father claimed to have made cash payments that were denied by the mother. He provided no evidence that these payments were made. In the context of the support issue being highly contested, it makes little sense that the father would make cash payments at this time without a receipt.
[17] The mother issued her application on June 11, 2015.
[18] After a series of case conferences, the parties settled the parenting issues on March 29, 2016. The parties agreed that they would have joint custody of the child, with the primary residence of the child with the mother. The parents agreed to a detailed parenting schedule.
[19] The mother deposed that notwithstanding the final parenting order, the father does not exercise much of the access available to him. He ordinarily sees the child on alternate weekends from Friday to Sunday. The father did not deny this.
[20] The parties could not resolve the financial issues. There is no temporary support order in place.
Part Three – Incomes of the Parties
3.1 Legal Considerations
[21] Section 19 of the guidelines permits the court to impute income to the mother if it finds that she is earning or capable of earning more income than she claims.
[22] 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.
[23] In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles:
a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices.
b) 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 own children.
c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.
d) The determination to impute income is discretionary, as the court considers appropriate in the circumstances.
e) 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.
[24] The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income:
Is the party intentionally under-employed or unemployed?
If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs?
If not, what income is appropriately imputed?
[25] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322.
[26] 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.
[27] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.
[28] When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23. 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; Drygala, supra, paragraph 39.
[29] Where the under-employment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations will not be reduced or cancelled. See: Luckey v. Luckey; Maurucci v. Maurucci, 2001 CarswellOnt 4349 (SCJ); Sherwood v. Sherwood; Rogers v. Rogers, 2013 ONSC 1997.
[30] Reckless behaviour which diminishes income earning capacity may also result in income being imputed. See: Rogers v. Rogers, 2013 ONSC 1997; Tillmanns v. Tillmanns, 2014 ONSC 6773.
[31] If an employer is justified in firing a payor, then the payor cannot use his or her dismissal as grounds for reducing support. See: Baldini v. Baldini; Aboagye v. Sakyi, 2012 ONCJ 56.
[32] The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli. 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 and Stoangi v. Petersen.
[33] 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.
[34] The third question in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.
[35] The test in Drygala for imputing income for child support purposes applies equally to claims for spousal support. See: Niranchan v. Nadarajah, 2015 ONCJ 149; Rilli v. Rilli, [2006] O.J. No. 2142 (SCJ); Crowe v. McIntyre, 2014 ONSC 7106.
3.2 The Father's Income
[36] The father's income in 2014 was $74,261.
[37] The father provided satisfactory medical evidence that it was necessary for him to go on light duties, with a reduction in his income, in April of 2015. The TTC wisely did not let him drive a bus when he was suffering from sleep apnea.
[38] The father testified that he began experiencing severe anxiety in the summer of 2015. He started seeing a psychiatrist every other week.
[39] The father's line 150 income in his 2015 income tax return was $61,412. No additional income will be imputed to him for 2015. He was not intentionally underemployed during that year.
[40] The father testified that he was tested for sleep apnea in September of 2015 and he obtained a sleep apnea machine. He said that the sleep apnea machine has been highly successful in addressing his sleep issues. He admitted that his sleep apnea did not prevent him from returning to his job as a bus driver on January 27, 2016.
[41] The father started taking medication for his anxiety in 2015. He said that it has worked well and he is medication-compliant. He stopped seeing his psychiatrist in February of 2016.[3] He said that his anxiety issues were much better by the end of 2015 and did not stop him from returning to his job as a bus driver on January 27, 2016.[4]
[42] The father said that he took the lower paying job at the TTC because he would no longer have to do shift work. He said this would permit him to take the child to school in the mornings.[5]
[43] When questioned, the father said that the mother had proposed other persons to take the child to school in the late fall of 2015. He said that he would not agree to let these persons take the child to school until he had their names and driver licences. He said that the mother did not provide this information to him until February of 2016.
[44] The mother deposed that she had proposed to the father a number of persons who could take the child to school in November of 2015. She said that the father outright refused to allow any third party to assist with pickups and dropoffs for the child.
[45] The mother produced a letter sent to the father's former counsel in November of 2015. In this letter, the mother identifies the child's godmother as a person who would take the child to school. The mother's counsel expressed concern that the father had called the godmother and threatened to drag her into the litigation and verbally berated her for "getting involved". The father denied saying this to the godmother,[6] but acknowledged that she had been identified by the mother as someone he knew who could take the child to school.
[46] In February of 2016, the mother was able to get the child into a subsidized before and after school program. The father has not taken the child to school in the mornings since then.
[47] The court finds that there were viable arrangements in place for other persons to take the child to school in the morning. The father did not need to take a much lower paying job for this reason.
[48] The father led no evidence of efforts to rearrange the access schedule to accommodate his shift schedule.
[49] It is not lost on the court that the father's choice to substantially reduce his income was made in the context of the mother's court action for child and spousal support.
[50] The father's annual income dropped by $25,000 with the new job. He also left his union, losing benefits and security. The court finds that the father's decision to turn down the higher paying job was not reasonable in these circumstances. He was medically fit to resume his job as a bus driver. He did not have child care responsibilities that justified this decision. He could have asked to rearrange the access schedule to accommodate his work hours and see the child just as often. He had a responsibility to his dependants to earn what he was capable of earning. The father was intentionally under-employed.
[51] The salary level prior to quitting a job was imputed to the payor in Thompson v. Gilchrest, 2012 ONSC 4137 and Lindsay v. Jeffrey, [2014] ONCJ 1. The same reasoning should apply in these circumstances. The father's annual income will be imputed at $74,261, effective February 1, 2016.
[52] Having imputed the father's income at this level on an ongoing basis, it is not necessary for the court to examine in detail the circumstances of his dismissal from the TTC at the end of April of 2016. However, if the court had found that the father's choice to take the lower paying job was reasonable, it would still have imputed his annual income at $49,322 (his new annual salary) after his dismissal from that position. The father was dismissed for cause.[7] He was apparently insubordinate. This was not an isolated incident as he had been reprimanded by his employer for his behaviour after an incident with a cyclist in April of 2015.
[53] The father's dependants should not be disadvantaged by his misconduct – actions over which he had control.
3.3 The Mother's Income
[54] The father asked the court to impute the mother's income at $30,000 per annum. He submitted that she has experience working as an administrative assistant, as a server in restaurants and in running flower shops.
[55] The mother proposed that her income be assessed at $17,653 per annum for support purposes.
[56] The mother started her flower shop business in 2012 while the parties were married. The father would sometimes help out at the business.
[57] The business was not successful. The mother incurred significant debt. She presently has debts of over $69,000.
[58] The mother earned $11,680 in 2012, $8,000 in 2013 and $6,995 in 2014, before she shut down the business.
[59] The mother entered into a consumer proposal with her creditors. However, she defaulted on this proposal after she had her personal injury accident in February of 2016.
[60] The mother worked at a restaurant as a server from September to November of 2014. The mother deposed that she left this job as the child was experiencing significant behavioural issues at the time. The mother had to attend many appointments for the child, including multiple meetings at the child's school and with his service providers.
[61] The mother enrolled in a Business Administration Program in January of 2015, but could not receive financial assistance to enter the program.
[62] The mother next enrolled in an interpreter-training program in March of 2015. She deposed that she was unable to complete the program due to the child's behavioural issues becoming worse in April of 2015. The child was referred to a psychologist that month.
[63] On May 1, 2015, the mother began working part-time as a school crossing guard.
[64] In June of 2015, the mother began working part-time at the bakery.
[65] The court finds that the mother was not intentionally underemployed in either 2014 or 2015. It will not impute income to her for those years.
[66] The mother's line 150 income in her 2015 income tax return was $17,653. The court accepts this figure as the mother's income for that year.
[67] On February 26, 2016, the mother had her personal injury accident.
[68] The mother is pursuing a personal injury claim against the TTC.
[69] The mother was unable to work for 2 months after the accident. She has regularly seen her family doctor and a physiotherapist.
[70] The mother returned to her job as a crossing guard on May 2, 2016. She said that her injuries prevented her from doing the physical work required at the bakery.
[71] The mother began receiving EI benefits of $543 bi-weekly on July 26, 2016.
[72] The mother deposed that she continues to experience pain in her left leg, right elbow and her neck. She said that she has hearing difficulties and has severe headaches.
[73] The mother provided satisfactory supporting medical evidence for these injuries.
[74] The mother has also recently been prescribed anti-depressant medication.
[75] The mother hopes to have a career with the TPS. She deposed that the crossing guard job is a step in this direction.
[76] The mother hoped to obtain a job as a parking enforcement officer with the TPS. The mother took the required tests for this position on May 29, 2016. However, she did not pass three of the five tests. She is permitted to take these tests again after three months. One of the tests she failed was physical – her hearing limitations were identified in the test. The mother is unsure if this is related to her accident and whether this can be resolved, so she can pass the test in the future.
[77] The mother has not worked during the summer of 2016 as schools are closed.
[78] The mother is doing her best, in very difficult circumstances, to support herself. The last two years have been very hard for her. She is looking towards the long-term security for herself and the child.
[79] The court finds that the mother's proposal to fix her income for 2016 and on an ongoing basis at $17,653 per annum for support purposes is reasonable in all of these circumstances. It will not impute additional income to her, as requested by the father.
[80] However, this finding is not open-ended. It may be that the mother's plan to work for TPS as a parking enforcement officer is unrealistic. She should, though, be given another opportunity to try and pass the required tests. If she can pass these tests, her income earning potential will be expanded.
[81] If the mother is unable to pass the necessary tests with the TPS, the court expects her to start looking for other work. This should include administrative positions that do not require physical work.
Part Four – Calculation of Ongoing Child Support Obligations
[82] Any support claimed after an application is issued is prospective support, not retroactive support. Ordinarily, once entitlement to support has been established, an applicant who has provided notice of a support claim, and who then proceeds reasonably to a disposition of the claim, is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. To do otherwise would only provide parties with an incentive to delay the final hearing. See: Mackinnon v. Mackinnon.
[83] The father's guideline table amount based on his 2015 income is $559 per month. Ongoing child support starts on July 1, 2015. The court will address if a retroactive support order should be made below.
[84] The father's guideline table amount starting on February 1, 2016 (when he should have returned to his job as a bus driver) is $675 per month. This is based on his imputed income of $74,261 per annum.
Part Five – Section 7 Expenses
[85] The mother has child care costs for the child, being the before and after school program. This expense is reasonable and necessary as it permits the mother to work.
[86] The mother paid $1,671 for these expenses from November of 2015 until January of 2016. The father paid 50% of these expenses and the mother has reflected these payments in the payment schedule set out in her affidavit.
[87] The father's monthly share of the net amount of these expenses (after consideration of tax credits and benefits for the mother related to the expense) is close to $1,000.[8]
[88] The mother was able to get the child into a more affordable before and after school program in February of 2016. Based on the mother's receipts, it appears that this program will cost about $1,100 in 2016. The father's proportionate share of the net amount of this expense for 2016 is close to $575.
[89] The father paid about $440 towards these expenses in 2016 and was credited with these payments by the mother in the payment schedule set out in her affidavit.
[90] The father's continuing obligation for section 7 expenses will be $48 per month. This will start on January 1, 2017, as the entire 2016 payment obligation has already been taken into consideration.
[91] The mother has also made a claim for some minor medical and dental expenses for the child. The father has testified that he purchased a private medical/dental plan and the child will be covered on this plan. The court will require the father to name the child as a beneficiary under the plan and not change this designation. This order is required for the provision of necessities for the child.[9] The mother should submit the medical and dental receipts to the father for reimbursement. The father shall pay the mother 74.2% of the medical and dental costs that are not reimbursed by his plan.[10]
Part Six – Spousal Support
[92] Section 30 of the Family Law Act (the Act) states that every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so. Subsection 33 (8) of the Act sets out the purposes of spousal support and subsection 33 (9) of the Act sets out how to determine the amount of spousal support. The court has considered these provisions in making this order.
[93] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See: Rioux v. Rioux, 2009 ONCA 569. Entitlement can be based on compensatory, non-compensatory or contractual grounds. See: Bracklow v. Bracklow.
[94] The mother established entitlement to support on both a compensatory and non-compensatory basis.
[95] The mother has assumed most of the child care responsibilities for the child. She is the parent who primarily deals with the child's school and service providers. The child has many challenges. The mother's child care responsibilities have and will continue to impair her ability to maximize her income. She will be the parent who needs to be available to meet with teachers, take the child to medical and service provider appointments and arrange his activities. It will likely affect the jobs she can take and the hours she can work.
[96] The mother has been seriously economically disadvantaged by the breakdown of the relationship.
[97] The mother also has the need for support and the father has had the ability to pay it. The mother has been placed in an economically precarious position. She filed for creditor protection and defaulted on her repayment plan when she was injured in February of 2016. She was left with significant debts on separation. Her bank accounts were frozen by her creditors. She has had to rely on friends, family and food banks for support.
[98] The mother deposed that she has annual expenses of about $24,000 for herself and the child.[11]
[99] The father has lived a comfortable lifestyle. In 2015 he was able to take vacations to Portugal and the Dominican Republic. He was able to purchase a timeshare. He claims to have expenses of $44,000 per year, not including child support.[12]
[100] There is a significant difference in the lifestyles the parties have been leading.
[101] The father did not dispute that the mother was entitled to support. He just argued that he could not afford to pay it. He also asked that the mother's annual income should be imputed at $30,000 per annum for the purpose of any support calculation.[13]
[102] The Court of Appeal in Fisher v. Fisher, 2008 ONCA 11 stated that the Spousal Support Advisory Guidelines, (SSAG), while only advisory, are a useful starting point to assess the quantum of spousal support once entitlement is established.
[103] A software analysis for 2015 reveals that the SSAG low range of support is $230 per month. The mid-range of support is $429 per month and the high range of support is $638 per month. This range of support is for an indefinite (unspecified) duration, subject to variation and a possible review, with a minimum duration of six years and a maximum duration of 12 years from the date of the separation.
[104] The mother asked the court to order spousal support at the high end of the SSAG range.
[105] Much of the mother's economic disadvantage lies ahead of her due to the labour market consequences for her ongoing child care responsibilities. This is a strong consideration in ordering support towards the higher end of the SSAG ranges. It is also an important factor in not time-limiting support on an original application for spousal support. See: Ideas of Spousal Support Entitlement (2015), 34 Can. Fam. L.Q. 1, by Professor D.A. Rollie Thompson.
[106] The court has considered that the mother has significant debts arising from the marriage and that the father is leading a far better lifestyle than the mother.
[107] The father's spousal support obligation starting on July 1, 2015 will be $500 per month. The issue as to whether the spousal support order should be made retroactive to an earlier date will be dealt with below.
[108] The software analysis indicates that this support payment will leave the father with about 49.2% of the family's net disposable income. This is a reasonable distribution of net family income.
[109] The spousal support obligation will change as of February 1, 2016, as the father's income is imputed at $74,261 per annum as of then.
[110] A software analysis based on the father's imputed income reveals that the SSAG low range of support is $506 per month. The mid-range of support is $740 per month and the high range of support is $990 per month.
[111] The father's spousal support obligation shall be increased to $825 per month starting on February 1, 2016. This will continue to leave the father with 49.2% of the family's net disposable income.
[112] The spousal support order will be indefinite, but will be subject to review (with respect to both entitlement and amount of support) at the request of either party after two years from this date. This is similar to the approach taken in Zivic v. Zivic, [2014] O.J. No. 6272 (SCJ); Dupuis v. Desrosiers, 2013 ONCJ 720 and this court in Kuznetsova v. Flores, 2016 ONCJ 203.
[113] The financial situation of the parties is in flux. It is unknown how the mother's injuries will impact her ability to work. It is also unknown how the child's behavioural issues will evolve and how the demands on her to address these issues will affect the mother's ability to earn income. The mother has an obligation to use reasonable efforts to become self-supporting and an examination of such efforts will be part of any court review. The court's expectation is that if the mother fails the testing for the TPS again, she will redirect her efforts to find other employment. The court, on the review date, will consider if the mother is still entitled to spousal support or may impose a time limit for her support.
[114] There is also uncertainty about the father's financial situation. He may not be able to find employment at the same income level he was earning as a bus driver at the TTC. The court has to balance not depriving the father's dependants of support based on his poor choices with the reality that the father may eventually not be able to afford support payments at the level of income imputed to him. At this point, the balancing of these considerations, based on the case law, favours the dependants. However, after two years, if the father, despite his best efforts, is unable to earn income comparable to what he was earning in 2014, the balancing of these considerations may shift in favour of imputing a lower income to him. It is expected that the father will keep a detailed job search list and use his best efforts to maximize his income.
[115] The review order does not preclude a party returning to court earlier if there is a material change in circumstances.
Part Seven – Retroactive Support
7.1 Legal Considerations
[116] The Supreme Court of Canada in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:
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.
[117] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.
[118] Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S., par. 97).
[119] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).
[120] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121).
[121] The court should not hesitate to find a reasonable excuse for delay where:
a) The recipient spouse harbored justifiable fears that the payor parent would react vindictively to the application to the detriment of the family or;
b) The recipient lacked the financial or emotional means to bring an application or;
c) The recipient was given inadequate legal advice (D.B.S., par. 101)
[122] The difference between a reasonable and unreasonable delay is often determined by the conduct of the payor. If they inform the recipient of income increases in a timely manner, do not pressure or intimidate the recipient, they will have gone a long way to showing the delay was unreasonable (D.B.S., par. 102).
[123] The court should take an expansive view of what constitutes blameworthy conduct. Blameworthy conduct is anything that privileges the payor's own interests over the children's right to an appropriate amount of support (D.B.S., par. 106).
[124] The more material the increase in income, the less likely the payor will be presumed to believe they were meeting their obligations (D.B.S., par. 108).
[125] Courts ordering a retroactive award must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable guideline tables is not required — nor is it recommended. While the date of effective notice should be chosen as a general rule, this will not always yield a fair result. Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case (D.B.S., par. 130).
[126] The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past (D.B.S., par. 125).
[127] The Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 decided that the D.B.S. factors apply, as modified, for spousal support (circumstances of spouse are relevant as opposed to circumstances of the child). The court found that there is no presumptive entitlement to spousal support and, unlike child support, the spouse is, in general, not under any legal obligation to look out for the separated spouse's legal interests. Thus, concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support. The court found that D.B.S. emphasized the need for flexibility and a holistic view of each matter on its own merits and that the same flexibility is appropriate when dealing with retroactive spousal support.
7.2 Analysis
[128] The parties agreed that the mother asked the father for support right after their separation. The father did not start paying support until September of 2014. No reason was provided for this delay by the father.
[129] It appeared that the parties were content for a while with the support that the father was paying to the mother. At times, the mother asked for additional payments and the father would give extra money to her. For instance, he paid for the mother's course to become an interpreter. The mother said that she first asked the father for additional money in late December of 2015 or early in January of 2016.
[130] The mother did not ask the father for spousal support until she started her application.
[131] It appears that the major impetus for the mother starting the application was the dispute over parenting issues.
[132] Neither party is legally sophisticated. The mother was unaware that she was entitled to spousal support until she obtained legal counsel to start the application. The father was not aware of this obligation – he just gave the mother additional money when she asked for it.
[133] The father engaged in blameworthy behaviour by not paying child support from June to September of 2014. After that time, his behaviour was not blameworthy.
[134] The circumstances of the mother and the child have been disadvantaged by the lack of proper support. They have struggled financially and have had to rely on food banks and the generosity of family and friends. The mother removed the child from extra-curricular activities.
[135] A significant retroactive order will cause some hardship to the father. However, he does own a timeshare. He also testified that he received an inheritance in 2014 or 2015 of 9000 euros.[14] He provided no accounting of this inheritance or where the funds have gone.
[136] The father paid the mother $6,680 in 2014. Balancing the DBS factors, the court finds that no further adjustments for support should be made for that year.
[137] The court will make its orders for child and spousal support retroactive to January 1, 2015. The father will be credited for payments made in those years to the mother.
Part Eight – Support Calculations
8.1 January 1, 2015 to January 30, 2016
[138] The father's guideline table obligation from January 1, 2015 until January 30, 2016 was $7,267 ($559 per month for 13 months, based on his income of $61,412).
[139] The father's share of the special expense for this period was $1,000.
[140] The father's spousal support obligation for this period was $6,500 ($500 per month for 13 months).
[141] The father's total support obligation for this period was $14,767.
[142] The total support paid by the father to the mother during this period was $9,538.
[143] The balance owing to the mother for this period is $5,229.
8.2 Support After February 1, 2016
[144] The father's guideline table obligation from February 1, 2016 to date is $4,725 ($675 per month for 7 months, based on his imputed income of $74,261).
[145] The father's share of the special expenses for 2016 is $575.
[146] The father's spousal support obligation for this period is $5,775 ($825 per month for 7 months).
[147] The father's total support obligation for this period is $11,075. The father has paid the mother very little support in 2016 - $1,444. Most of the arrears that will arise from this order are due to his failure to pay adequate support to the mother in 2016.
[148] The balance owing to the mother for this period is $9,631.
8.3 Repayment of Arrears
[149] The total arrears owed by the father to the mother are $14,860 ($5,229 plus $9,631).
[150] The father will likely have to sell his timeshare to satisfy most of these arrears.
[151] The father shall pay the mother 50% of the outstanding arrears ($7,430) within 60 days. The balance may be paid at the rate of $200 per month starting on November 1, 2016.[15] However, if the father is more than 30 days late in making any payment due under this order, the full amount of arrears shall immediately become due and payable.
Part Nine – Conclusion
[152] A final order shall go as follows:
a) The father shall pay child support to the mother in the sum of $559 per month, starting on January 1, 2015. This is the guideline table amount for one child, based on the father's income of $61,412 per annum. This amount is increased to $675 per month, starting on February 1, 2016, based on the father's imputed income of $74,261 per annum.
b) The father shall pay the mother $1,575, representing his proportionate share of section 7 expenses for the child to the end of 2016, as calculated in this decision.
c) The father shall pay the mother $48 per month for his proportionate share of section 7 expenses for the child, starting on January 1, 2017.
d) The father shall pay spousal support to the mother in the sum of $500 per month, starting on January 1, 2015. This amount shall be increased to $825 per month starting on February 1, 2016.
e) Spousal support is subject to review by either party on or after September 1, 2018, with respect to both entitlement and amount, without the necessity of proving a material change in circumstances and based on the expectation that the mother will use her best efforts to become self-supporting. This does not preclude either party returning to court earlier if there is a material change in circumstances.
f) The father will be credited with support payments of $10,982 from January 1, 2015 to date, as calculated in this decision.
g) The support arrears created by this order are fixed at $14,860, as calculated in this decision.
h) The father shall pay the mother the sum of $7,430 towards the support arrears within 60 days of this decision.
i) The father may pay the balance of arrears to the mother at the rate of $200 per month, starting on November 1, 2016.
j) If the father is more than 30 days late in making any support payment required by this order, the entire amount of arrears owing at that time shall immediately become due and payable.
k) Nothing in this order precludes the Director of the Family Responsibility Office from collecting arrears from any government source (such as income tax or HST returns) or from any lottery or prize winnings.
l) The parties shall exchange their complete income tax returns and notices of assessment by June 30th each year.
m) The mother shall provide the father with all section 7 expense receipts by June 30th each year.
n) The father shall maintain the child as a beneficiary on any medical, dental or extended health coverage that he now has or is available to him. The father shall not change this designation without prior court order.
o) The mother shall deliver the medical and dental receipts for the child to the father for 2016. The father shall immediately submit them to his insurer and promptly reimburse the mother upon receipt of funds.
p) The father shall pay the mother 74.2% of section 7 expenses not covered by his medical, dental or extended health plan.
q) The parties shall immediately notify one another if he or she obtains employment. They shall advise the other of the name and address of the employer, the rate of pay and copies of any employment contract.
r) The father's claim for repayment of support is dismissed.
s) A support deduction order shall issue.
[153] The parties shall have until September 7, 2016 to make written submissions if they believe that there are any mathematical or inputting errors in the software analysis that will be sent to them with this decision. The other party will then have 7 days to make written response. The order shall not be taken out until this time period elapses, or until the court addresses any submissions made.
[154] If either party seeks costs, he or she shall make written submissions by September 21, 2016. The other party will then have until September 30, 2016 to make a written response. The written submissions shall not exceed three pages (not including any offer to settle or bill of costs) and shall be delivered to the trial coordinator's office on the second floor of the courthouse.
[155] The court thanks counsel for their professional presentation of this case.
Released: August 26, 2016
Justice S.B. Sherr
Footnotes
[1] This position was contained in his draft order presented at trial. In his trial affidavit, the father asked the court to fix his income for support purposes at $23,400 per annum – the minimum wage.
[2] The amounts paid by the father are set out in a schedule in paragraph 94 of the mother's trial affidavit.
[3] The father testified that he saw the psychiatrist one more time after he was fired in 2016.
[4] When asked if he was medically able to drive a bus as of January 27, 2016, the father answered, "definitely".
[5] The father deposed that he was taking the child to school most mornings in the fall of 2015.
[6] The father did not deny this conversation in his trial affidavit, but did deny it during cross-examination. The court did not find this evidence credible.
[7] The father deposed that he is negotiating a settlement arising out of his dismissal from the TTC.
[8] The software calculation will be provided with this decision.
[9] This finding is required pursuant to subsection 34 (2) of the Family Law Act.
[10] This is the father's proportionate share of section 7 expenses after taking into account the spousal support that will be ordered.
[11] This is contained in her financial statement sworn on August 6, 2016.
[12] This is contained in his financial statement sworn on August 8, 2016.
[13] The father submitted that based on his income of $56,817 per annum and the mother's income of $30,000 per annum, he should not be required to pay spousal support as his child support obligations take priority.
[14] The mother thought he inherited over 200,000 euros.
[15] The court suggests that the father seek professional advice to determine if it would be to his financial benefit to pay all spousal support arrears before the end of 2016.
