Court File and Parties

Court File No.: Toronto D548/97 Date: 2016-02-04 Ontario Court of Justice

Between:

Minerva Diaz also known as Minverva Pena Applicant (Moving Party)

— AND —

Elois Sanchez Pena Respondent (Responding Party)

Before: Justice Curtis

Heard on: 5 December 2014, 11 March 2015, 17 March 2015, 24 April 2015, 15 June 2015, 13 July 2015

Reasons for Judgment released on: 4 February 2016

Counsel:

Eli Karp, for the Applicant
Lance Carey Talbot, for the Respondent

CURTIS, J.:

Overview

This is the decision in the father's motion to change the child support terms of an order made 16 March 1998 for support for three children (Jesse, Allen, and Brian).
The father started a motion to change on 26 May 2013 asking to stop child support entirely as of 1 June 2013, because he believed all three sons were independent adults and were no longer entitled to any child support.
The mother's response filed on 30 September 2014 asked:

a) To dismiss the father's motion to change;

b) to change the table amount of child support to the proper amount based on the Child Support Guidelines for the father's income, for Allen and Brian (no start date was specified);

c) for s. 7 expenses for Allen and Brian (no start date was specified); and,

d) for retroactive child support for the table amount and s. 7 expenses (no start date was specified).
The issues for decision are these:

a) Should child support be terminated, and if so, for which children and what is the proper termination date?

b) Should there be a retroactive adjustment of the child support table amount in accordance with the father's income, and if so, for which children, and what is the proper start date?

c) Should there be a retroactive adjustment of child support for special expenses in accordance with the father's income and the special expenses incurred, and if so, for which children, for which expenses, and what is the proper start date?

Background Facts

The Respondent (the moving party) is the father, Elios Sanchez Pena ("the father") now 56 years old (born 25 September 1959). The father works in general labour as an upholsterer and in 2013 earned $54,664.00 (this appears to be the most recent income information available).
The Applicant (the responding party to the motion) is the mother, Minerva Diaz, ("the mother") now 51 years old (born 10 June 1964). The mother has worked mostly as an office cleaner over the years for a modest income. She was bankrupt in 2009, and was discharged in 2010. After the bankruptcy discharge in 2010, she got full-time work as an office cleaner.
The parents were married on 3 January 1987. They separated on 1 May 1995. They were divorced in 2002.
There are three children of the marriage:
- Jesse, born 7 May 1988, now 27 years old;
- Allen, born 6 June 1991, now 24 years old; and,
- Brian, born 12 April 1993, now 22 years old.
The order in this motion to change is the order of Walmsley, J. made 16 March 1998 for child support for three children of $566 per month, starting on 27 September 1997. The order does not specify the father's income at the time (a backwards calculation using the Child Support Guidelines relevant at the time suggests this table amount could have been based on an annual income of $29,900). The final order was identical to the terms of a consent temporary order made by Nevins, J. on 15 September 1997. The father's income was not stated in either order. There was no clause requiring annual financial disclosure.
Both the father and the mother have remarried, the father in August 2010, and the mother in 2011. There was no evidence from either parent about who the new spouses are, whether they earned income, and how much income they earned.

The Father's Position

The father says that he never received any request for an increase in the table amount of child support, nor any request for a contribution to the s. 7 expenses now claimed. He says that he did not see any proof of the special expense amounts until the mother filed her response to the motion to change and made these claims (in 2014). He says that the mother has never requested any contribution to these expenses.

The Mother's Position

The mother says that she has repeatedly asked the father to contribute financially for the children, and that specifically, she has asked him to contribute to the cost of the children's braces, schooling, graduations, medical bills, and to assist generally, and specifically around the time of her bankruptcy (in 2009 or 2010). She says that he has always flatly refused.

Presentation of the Case

This case was badly presented and poorly handled, although both parties were represented by lawyers.
Although started in May 2013, this case was not argued until late 2014 and through 2015. The case was adjourned repeatedly, at the request of the parents. Both sides were ordered to pay costs during this period. There were repeated endorsements that the matter was to proceed peremptory at the next date. There was long delay and there were several extensions of time for the mother to file her responding materials. It was set down for hearing on 5 occasions where court time was put aside for this (one half-day each time) and it did not proceed (28 August 2013, 1 November 2013, 26 February 2014, 12 June 2014, and 30 September 2014).
Even after argument, there was inadequate evidence to make a determination on some of the issues raised, notably:

a) on eligibility for s. 7 expenses;

b) if eligible, on the amount of the s. 7 expense;

c) if eligible, on the proportionate share of the s. 7 expense; and,

d) if eligible, regarding the proper contribution of each child to the s. 7 expense.

The evidence presented was so inadequate that the court had to require the parties (endorsement of 24 April 2015) to serve and file additional evidence in affidavits as follows:

a) The net cost to the mother of all s. 7 expenses claimed, under s. 7(3) of the Child Support Guidelines;

b) Mother's income for 1997 to 2007;

c) Details regarding years in which each s. 7 expense was incurred for each child; and,

d) Full details of incomes of all three children by year.

Material was filed, and the matter returned to court to continue argument on 15 June 2015, but there was still inadequate evidence to make a determination on some of the issues raised regarding mother's claims for s. 7 expenses and claims for retroactive contributions to s. 7 expenses. The parties were ordered once again (the endorsement 15 June 2015) to file additional affidavit evidence as follows:

a) Mother's income from line 150 from Income Tax Returns from 1997 to 2007; and,

b) The net cost to the mother of all s. 7 expenses claimed under s. 7(3) Child Support Guidelines.

The endorsement provided that if no additional material was filed that the court would deal with the motion based on the evidence then available.

The Motions to Change

The father's motion to change the child support terms of the order made 16 March 1998 was bought under s. 37(1) and (2.1) of the Family Law Act, R.S.O. 1990, c. F. 3, as amended ("F.L.A."), and s. 14 of the Child Support Guidelines, Ont. Reg. 391/97, as amended:

Application for variation

37. (1) An application to the court for variation of an order made or confirmed under this Part may be made by,

(a) a dependant or respondent named in the order;

(b) a parent of a dependant referred to in clause (a);

(d) an agency referred to in subsection 33 (3). 1997, c. 20, s. 6.

Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(e) discharge, vary or suspend a term of the order, prospectively or retroactively;

(f) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(g) make any other order for the support of a child that the court could make on an application under section 33. 1997, c. 20, s. 6.

Variation of Orders for the Support of a Child

Circumstances for variation

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.
In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.
In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).
In the case of an order made under the Act, the coming into force of subsection 33 (11) of the Act. O. Reg. 391/97, s. 14 ; O. Reg. 446/01, s. 3.
Sections 37(2.2) to 37(2.6) of the Family Law Act and the Guidelines provide the framework within which the court is to undertake the calculation of child support in a variation proceeding. The object of the child support provisions set out in the Act and the Guidelines is to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient: D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (referred to as "D.B.S." or "the D.B.S. cases"); Ethier v. Skrudland, 2011 SKCA 17; Geran v. Geran, 2008 SKQB 460; Geran v. Geran, 2011 SKCA 55; Meyer v. Content, 2014 ONSC 6001, para. 65.
Both s. 37(2) and (2.1) of the F.L.A. give a court jurisdiction to "discharge, vary or suspend" the support "prospectively or retroactively". This gives the court jurisdiction to vary a child or spousal support order retroactively: Mondino v. Mondino, 2013 ONSC 7051, para. 82.
The powers of the court on a motion to vary a child support order are very broad. The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis. The court's authority with respect to arrears is similarly broad, and includes the power to rescind the arrears and interest, either entirely or in part, or to reduce the amount of arrears payable. The powers of the court in a variation proceeding also include the power to order appropriate set-offs: Campbell v. Chappel, 2006 CarswellNWT 28; Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 19.
As set out in section 37(2.1) of the Family Law Act, a threshold issue that must be addressed in a motion to change child support is whether there has been a change in circumstances within the meaning of Guidelines since the order was made, or whether evidence that was not available at the hearing respecting the order has now become available. Section 14.1 of the Guidelines provides that where the amount of child support set out in the order includes a determination made in accordance with the Tables under the Guidelines, any change in circumstances that would result in a different order for the support of the child constitutes a change that gives rise to the making of a variation order. Accordingly, a change in the payor's income or evidence that the child is no longer entitled to child support under the Family Law Act would satisfy the threshold test of whether there has been a change in circumstances since the previous order was made: Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 20.

The Table Amount of Child Support

Both parents say there has been a change in circumstances. The father says that the change is the fact that the three children are no longer eligible for support. The mother says that the change is that the father earns significantly more income and that the children have incurred s. 7 expenses for post-secondary education and other expenses.

Can Entitlement End and Later be Revived?

The law is clear that support can be reinstated for an adult child after a hiatus in entitlement: F.(R.L.) v. F.(S.); MacLennan v. MacLennan, 2003 NSCA 9; Haley v. Haley.
Cases decided under the F.L.A. have also established that entitlement to child support can be revived when a child of the relationship resumes their educational pursuits after taking time off from their studies. In Radford v. Nunn, 2011 ONSC 7276 (S.C.J.), the test in determining this issue under the Family Law Act is whether the evidence considered as a whole leads to the conclusion that the child established a status of permanent independence from their parents during the time when they were out of school. In determining this issue, the factors to consider include:

a) the amount of time that the child took off from school;

b) whether the time off was intended to be temporary for the purpose of saving money for school or for any other purpose aimed at improving the child's life;

c) whether the child required a period of time to devise a plan for their future;

d) whether the child was exploring educational alternatives during the time in question; and,

e) whether the child was in fact able to achieve any degree of independence from their parents during the time off school.

The longer the time is between the time when entitlement ended and the moving party seeks to have it reinstated, the more onerous the burden will be on the moving party: Lawless v. Asaro; Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 35.

Eligibility and the Timing of the Claims for Retroactive Child Support: The Age of the Child at the Time of the Claim

When the mother brought her claim (on 30 September 2014), for a retroactive adjustment to the table amount and for s. 7 expenses, the children were 26, 23 and 21 years old. Two of them (Jesse and Allen) were not then eligible for child support.
In D.B.S. the court found that a claim for retroactive support could not be made unless the child was eligible for support at the time of the application (D.B.S., para. 88 and 89). The father, relying on D.B.S., says that this means that the mother may not claim retroactive adjustments for either of those two children.
The order in question, the order both parents are asking to change, is an order of the Ontario Court of Justice under the Family Law Act.
In D.B.S., the court specifically referred to the wording of the Divorce Act (s. 15.1) in this analysis, finding that "the material time" for retroactive child support awards in the Act refers to the time of the application. This analysis has also has been applied in cases under the Family Law Act: Browning v. Browning, 2008 ONCJ 388; P.M.B. v. A.R.C., 2015 ONCJ 720, para. 78, 79.
This approach has been distinguished in cases involving motions to change support (rather than fresh applications for support). Specifically the approach has been distinguished in motions to change retroactively brought under the Divorce Act: Simone v. Herres, 2011 ONSC 1788; George v. Gayed, 2014 ONSC 5360; Lemay v. Longpré, 2014 ONCS 5107; Buckingham v. Buckingham, 2013 ABQB 155; and in those brought under the Family Law Act: Mondino v. Mondino, 2013 ONSC 7051; Meyer v. Content, supra, 2014 (Ont. Sup. Ct.); Catena v. Catena, 2015 ONSC 3186; P.M.B. v. A.R.C., supra, 2015 (Ont. Ct.), para. 81-88.
The approach was also distinguished in Catena, supra, 2015 (Ont. Sup. Ct.), para. 22, on the basis of the difference between a case brought under the Divorce Act and one brought under the Family Law Act.
In short, the case law has created exceptions to the D.B.S. analysis in the following circumstances:

a) In variation proceedings where there is an existing order and an established support obligation under the Divorce Act;

b) In motion to change proceedings where there is an existing order and an established support obligation under the Family Law Act; and,

c) When there has been blameworthy conduct on behalf of a support payor that has contributed to the support recipient's failure to bring the retroactive support claim within the requisite time.

P.M.B. v. A.R.C., supra, 2015 (Ont. Ct.), para 91.

This case is a motion to change an existing support order and an established support obligation under the Family Law Act. It is not a fresh application for support. The father brought his motion to change on the basis that all the children were no longer entitled to receive support. The mother brought her motion to change on the basis that the father had underpaid support for many years and had never contributed to eligible s. 7 expenses. The mother is entitled to bring this motion to change, even if the children were not eligible for support at the time she started her claim, just as the father is entitled to bring his motion to change, even if the children were not eligible for support at the time he started his claim. The court has jurisdiction to hear these requests.

What is the Proper Start Date for Adjusting Child Support?

Retroactive child support (both the table amount and s. 7 expenses) 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., supra, 2006 (S.C.C.).
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.
These are the framework principles set out in the D.B.S. decisions:

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;
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;
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; and,
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.

In the D.B.S. cases, the Supreme Court of Canada sets out a process to follow when considering and deciding issues of retroactivity:
What is the legal status of the support obligation?
- a) court order;
- b) agreement; or,
- c) no order or agreement.
Are there any legal excuses/exemptions that apply (the factors to be considered)?
- a) the child's age;
- b) delay;
- c) blameworthy conduct;
- d) hardship to the child; or,
- e) hardship to the payor.
What is the proper retroactive amount to be ordered?
- a) commencement date; and,
- b) amount to be ordered.
While the payor parent does not shoulder the burden of automatically adjusting payments, or automatically disclosing income increases, this does not mean that he will satisfy his child support obligation by doing nothing. If his income rises and the amount of child support paid does not, there will remain an unfulfilled obligation that could later merit enforcement by a court: D.B.S., para. 59. This means that a parent will not have fulfilled his obligation to his children if he does not increase child support payments when his income increases significantly.
The certainty offered by an order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support: D.B.S., para. 64.
Parents should not have the impression that child support orders are set in stone. Even where an order does not provide for automatic disclosure, variation or review, parents must understand that it is based upon a specific snapshot of circumstances which existed at the time the order was made. For this reason, there is always the possibility that the order may be varied when these underlying circumstances change: D.B.S., para. 64.
An increase in income that would alter the amount payable by a payor parent is also a material change in circumstances: D.B.S., para. 66.
In a situation where the payor parent is found to be deficient in his support obligation to his children, it will be open for a court to vary an existing order retroactively. The consequence will be that amounts that should have been paid earlier will become immediately enforceable: D.B.S., para. 74.

The Parent's Relationship and Child Support

The parents admit that they have not communicated over the years.
The father says they have barely communicated since the separation in 1995 (20 years ago). The father says he last spoke to the mother in about 2006, when they did paperwork together for the children to apply for Green Cards, so the children could move to America if they wished, the cost of which applications the father says he contributed to. The father says that the subject of support was never broached by the mother in any way until the father's lawyer received a letter from the mother's lawyer dated 14 May 2013 (after the mother was served with the father's motion to change).
The mother says it was not a good relationship, that she is terrified of the father, and that he intimidates her at every opportunity, often using profanity in front of the children. The father denies this, says he has never been violent or aggressive towards her and that he has never used profanity towards her. The mother says that she has repeatedly asked the father to contribute financially for the children, and that specifically, she has asked him to contribute to the cost of the children's braces, schooling, graduations, medical bills, and to assist generally, specifically around the time of her bankruptcy (in 2009 or 2010). She says that he has always flatly refused.
The mother says it was not difficult for the parents to communicate through the children, so she also asked the children to ask the father for financial contribution, which she says all three children have done on multiple occasions. The father's response was that he "could not afford it", but that he "would try to help out in the future".
The father denies this. He says that he did not use the children as a means to communicate with the mother. He says that they asked not to be put in the middle and he respected that. He says that the children did not ask for money on behalf of the mother, but that they did ask for money on their own behalf. He says that she never asked for more money through the children, or through mutual friends or relatives. He says that he did not even know of the mother's bankruptcy until he read her affidavit in this court case. He says that she did not communicate to him a request for more money or to increase child support. He says that he never received a letter, text or e-mail or invoice from her. He says she never communicated her desire to receive additional money or for him to pay for the s. 7 expenses. He says that he learned about her life indirectly through conversations with the children. He denies that he told her he did not have money to support the children, and says that they never spoke, not for years. He admits that he did not disclose the increase in his income to her.
Both parents were clear that there has been very little communication between them in the 18 years since the order was made. This is regrettable, and is certainly not in the interests of their three children. Parents have an obligation to continue the level of contact necessary to ensure that their children's needs are adequately met.

Was there Delay by the Recipient?

Delay in seeking an increase in child support is a factor in determining whether a retroactive award is justified: D.B.S., para. 100, 101.
The father says that his relationship with the children is not strong. He says that he rarely speaks to them and only learns what they are doing through third parties and sometimes from the children themselves. However, the father's evidence on this is inconsistent. He identified a lot of information about the mother and the children that he says he learned from the children (e.g., that the mother travels a lot, that she married a man in the Dominican Republic and he lives there, about the mother's wedding in the Dominican Republic (the size, who paid for flights, the costs, etc., and that the mother paid for all three children to attend the wedding)).
The mother says that the father has a relationship with all three children, and that the father and Jesse (the oldest child, now 27) worked together in December 2013, and they saw each other every day.
The mother waited a considerable period before returning to court to seek an increase in the table amount of support and a contribution to s. 7 expenses. Her evidence is that she asked the father to contribute and that he refused. She says she was intimidated by him. The court accepts the mother's version of these events, and understands why she was unwilling to return the matter to court, and why she waited as long as she did to do so. Her version is consistent with the other evidence and consistent with the father's position at the hearing that he simply should not have to contribute to any of these expenses.

Blameworthy Conduct of the Payor

The payor parent's interest in certainty is least compelling where he engaged in blameworthy conduct: D.B.S., para. 105.
Courts should take an expansive view of what constitutes blameworthy conduct in this context: George v. Gayed, supra, 2014 (Ont. Sup. Ct.), para. 51.
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.
A payor parent cannot hide his income increases from the recipient parent in the hopes of avoiding larger child support payments: D.B.S., para. 106.
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.
Whether a payor parent is engaging in blameworthy conduct is a subjective question: D.B.S., para. 108.
Hardship for the payor parent is much less of a concern where it is the product of his own blameworthy conduct: George v. Gayed, supra, 2014 (Ont. Sup. Ct.), para. 53.
Another conduct issue addressed by the cases is the failure to pay the support which was originally ordered: Mondino v. Mondino, 2013 ONSC 7051, para. 102.
In D.B.S., the Supreme Court of Canada emphasized the importance of eliminating incentives for payor parents to avoid their child support obligations, and ensuring that children receive the support which they are entitled to in a timely manner: Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 54.
The original support order was made 18 years ago. In argument the father's lawyer said he "scrupulously obeyed the order". The father's evidence is that he is fully paid up in support and that there are no arrears. He says this in his Change Information form sworn 26 May 2013 and in his affidavit sworn 2 August 2013, and his lawyer argued this in submissions. He admits that he was in arrears in the past, but that he paid up all the arrears by 2005. He argued that any blameworthy conduct regarding the amount of the support payments should be mitigated by the father's obedience to the order.
While this description regarding his support payment history may be true as of the dates of swearing of those documents (although no evidence to support this claim was offered), this evidence by the father presents an inaccurate picture of the history of support payments, and is, in fact, actively misleading. A Statement of Arrears (dated 4 June 2013) from the Family Responsibility Office sets out a history of the payments. The father has been almost constantly in arrears of support since the time of the first temporary support order in 1997. He was in arrears at the end of every year since the order was made except two (2006 and 2010). At the end of some years, the arrears were quite large (1998, 1999, 2000, 2001, and 2002). In some years almost no payments were made. That means that the mother was supporting the three children on her own, on her income only. This is a summary of the incomes the parents earned in those years, the support actually paid in those years, and the arrears at year end in those years (information was not provided for each year in each category):

Year	Mother's Income	Father's Income	Support Paid	Arrears (under existing order) at year end
1997	$28,479.00	$283.00	$849.00
1998	$24,653.00	$1,483.79	$6,157.21
1999	$32,720.00	$76.00	$12,873.21
2000	$40,824.00	$6,857.09	$12,732.12
2001	$40,081.00	$9,192.00	$10,332.12
2002	$43,601.00	$11,987.28	$5,136.84
2003	$36,697.00	$9,192.00	$2,736.84
2004	$19,637.00	$8,426.00	$1,102.84
2005	$38,601.00	$7,060.00	$834.64
2006	$39,831.00	$7,792.00	($165.16)
2007	$41,179.00	$5,328.84	$1,298.00
2008	$2,104.46	$42,877.00	$7,001.54	$1,088.46
2009	$6,379.00	$44,018.00	$8,318.49	$217.70
2010	$22,006.00	$40,966.00	$7,053.21	($43.51)
2011	$23,080.00	$46,853.00	$6,530.75	$217.74
2012	$18,087.00	$51,711.97	$6,269.52	$740.22
2013	$20,399.00	$54,664.00

The father engaged in blameworthy conduct right from the time that the first temporary support order was made in 1997, and continued to engage in blameworthy conduct throughout the period of the support order. He was rarely paid up to date regarding support, and was often in significant arrears. There were some years in which he paid almost no support (in one year he paid $76 for the entire year). He was in substantial arrears over a long period of time (more than five years).
The father engaged in blameworthy conduct in not paying the child support order in a timely manner, in not disclosing changes in his income, and in not adjusting the child support according to his income.

Hardship in the Circumstances of the Child

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.
The mother says that her household with the three children has subsisted on a very meager income. She says that they have barely been able to provide for their basic needs, and that they have barely been able to make ends meet. During the period of the support order the mother was, at times, working as a cleaner and earning a very modest income. The court accepts the mother's evidence on this issue.

Hardship to the Payor

The father did not plead hardship and did not argue hardship. In any event, a retroactive child support adjustment does not visit hardship on the payor in this case. The issue of hardship can be addressed by a repayment schedule.

Start Date of the Order

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.

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.
"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.
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 (that is, the date when the amount of child support should have increased) will be the presumptive start date of the award: D.B.S., para. 134.
The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that he reasonably believed his child's support entitlement was being met: D.B.S., para. 124.
The presence of blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his informational advantage to justify his deficient child support payments: D.B.S., para. 124.
The father's conduct regarding his support obligation to his three children, over a long period of time, is egregious. He did not consistently or even regularly comply with the support order. He knew his child support obligation was tied to his income. He knew that his income had increased. He did not disclose his increase in income. He did not pay an increased amount of support. He did not contribute to any s. 7 expenses, even when asked to do so. He had the means to pay an increased amount of support and to contribute to the s. 7 expenses and he refused to do so. He benefitted financially over a period of many years from this conduct. He knew what he was doing. This is blameworthy conduct.

The Fairness Umbrella Regarding Retroactive Child Support

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.
The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for any delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail: D.B.S., para. 133.
The father made a voluntary contribution to a s. 7 expense in 2006 when the parents apparently discussed and worked together on the application of the three children to be able to work in the United States.
These determinations involve a balancing of interests: the payor's right to know with some certainty what his obligations are, and the child's right to be supported at the appropriate level. It is only after a detailed examination of the facts in a particular case that the appropriateness of a retroactive award can be evaluated. The payor has the advantage, of course, as the payor is often the only one in the equation (payor, recipient, and child) in possession of the information about his income and what the appropriate amount of support should be at any given time. Courts must be open to ordering retroactive support where fairness to children dictates it: D.B.S., para. 5 and 6.
This requires the judge to examine all the factors and weigh those factors, keeping in mind the need to balance these interests. No matter what order is made, one parent will be disadvantaged.
The question of retroactive child support awards is a challenging one because it only arises when at least one parent has paid insufficient attention to the payments his/her child was owed. Courts must strive to resolve such situations in the fairest way possible, with utmost sensitivity to the situation at hand. But there is unfortunately little that can be done to remedy the fact that the child in question did not receive the support payments he was due at the time when he was entitled to them. D.B.S., supra, para. 135.
The Supreme Court of Canada cannot have meant that the court should reward a father who fails to make payments under the original order by refusing to retroactively vary the order. Such an interpretation would encourage payors to not comply with the court order, as there would be no adverse consequences for them.
On an overall fairness analysis of all the circumstances in this case, it is fair, just and appropriate that there be an order for a retroactive adjustment of child support. The appropriate start dates are dealt with below.

The Mother's Claims for Retroactive Support

The mother's claims for retroactive table amount and retroactive s. 7 expenses were very poorly presented throughout the court case, both before and after she was represented by a lawyer. The mother presented a large amount of material (including her income details, invoices for some of the s. 7 expenses claimed, a history of each child's education and work, and some information about the children's incomes), some of which material was incomplete, patchy and badly organized.
There were no specific start dates identified or specific amounts claimed in her Response to the Motion to Change, nor in her affidavit in support. There were no specific start dates identified in her factum. Even in response to repeated questioning by the court, and a specific request for a chart organizing and setting out the details of her claims, her lawyer did not present an organized request for specific start dates for each of the three children, nor in each of the several categories of s. 7 expenses that she was claiming.
The evidence from both parents about the lives, schooling, employment, and living situations of the three children was also poorly organized and very difficult to follow. There were gaps in the chronology of the evidence, gaps about their schooling, and gaps about the children's income. It was difficult to determine when the children were in school, and whether school was full-time, part-time or co-op. Some dates were given in detail. Some income information about the children's income was provided. The parents seemed to expect that the court would just figure out what was being claimed and what should be ordered.
Neither parent asked to cross-examine the other on this information. The court had to organize all of the information regarding the three children, their schooling, their work histories, and their start and stop dates, in order to determine their dependence for child support purposes under F.L.A. s. 31 (1). This part of the case was very badly handled and very poorly presented by both sides. The court should not have to sort through evidence and other material in order to determine the children's situations and their dependence (or not) for child support purposes, and particularly not when both parents are represented by lawyers. The court should not have to guess at what a parent is actually claiming, or speculate on the details of a claim.
The only place there appeared to be a specific list of the mother's claims was in a letter from her lawyer to the father's lawyer dated 6 June 2014. These are the details of her claims in the letter dated 6 June 2014 to the father's lawyer:

a) Ongoing child support for two children of $768.96 per month on income of $51,711.97 (no start date is specified for this adjustment);

b) Arrears of table amount of support of $32,022 (a chart shows adjustments starting in 2002 through to 2014 based on the father's line 150 incomes, with credit for the amounts paid or overpaid; the calculation assumes entitlement for all three children up to and including 2012, and for two children after that); and,

c) Arrears of s. 7 expenses totalling $19,837.58 (calculated as the father's proportionate share of 74% of the total $26,450.11 = $19,837.58) for these categories (costs of s. 7 expenses does not take into account any contribution by the children to these expenses).

This letter was an exhibit to one of the mother's affidavits (not the mother's affidavit in response to the motion to change (sworn 14 July 2014 but not filed until 30 September 2014), but an earlier affidavit (sworn 12 June 2014), filed before she filed her response to the motion to change). The letter was placed in the middle of a package of five letters between the lawyers. It was very hard to find, and could easily have been missed. These details of her claims were not presented in either her affidavits nor in her factum (although the letter was referred to in the factum and was appended to the factum as a Schedule). This is not effective advocacy. Her claims were confusing and difficult to discern. This is not fair to the mother, and it is not fair to the court.
The court repeatedly requested additional and better information. The court specifically asked for particulars which had not been provided. Eventually, after several adjournments and orders by the court that the mother do so, a chart regarding the payments made and those claimed for the table amount was presented.
The mother's claims for a retroactive adjustment of the table amount and the s. 7 expenses are complicated and need to be addressed separately.

The Mother's Claims for Retroactive Adjustments of the Table Amount and the Children's Eligibilities

Jesse

Jesse was born on 7 May 1988, and is now 27 years old. Jesse was in high school when he turned 18, on 7 May 2006. He worked part time during high school, his income was modest, and it was difficult to maintain employment. In 2007 his income was $1,458.60. He graduated from high school on 25 June 2008 at age 19. He continued school that fall at Humber College in a full time program. In 2008 the mother paid the Humber College tuition for Jesse of $3,335.20. Jesse received no loan money from the Ontario Student Award Program ("O.S.A.P."). His 2008 income was $2,104.11. He graduated from the Game Programming Program in April 2009.
After graduation, he tried to get employment. But there were very few jobs and he battled unemployment. He was unemployed from April 2009 until September 2010, when he started school again full time at Trios College in the Honours Business Administration Diploma Program. Tuition cost at Trios College for 2010 was $15,660. Jesse qualified for and received a loan from O.S.A.P. of $9,520.26. The rest of the tuition ($6,139.77) was paid by the mother. The mother says that the father refused to contribute any money towards Jesse's tuition. The father says that he was never asked to contribute to the costs of the Trios College program, either by Jesse or by the mother.
Jesse graduated from Trios College on 9 September 2011. Following graduation, Jesse was unable to find employment. As well, he suffered from an acute case of foot fungus and was incapable of working. His income in 2011 was $2,104.46. His income in 2012 was $160. Through 2013 Jesse worked at various jobs at minimum wage. In 2014 Jesse was 26 years old and living with his girlfriend.
On the basis of the evidence presented, these are Jesse's periods of dependence for child support purposes (F.L.A. s. 31(1)):

a) ending in April 2009;

b) starting again in September 2010 to end in September 2011.

Allen

Allen was born on 6 June 1991 and is now 24 years old. He turned 18 on 6 June 2009, and graduated from high school on 26 June 2009. Following graduation, he was accepted into a Ministry of Education Apprentice Program to become a Registered Automotive Apprentice. This is a hands-on apprenticeship training program consisting of alternating classroom time and paid employment. His 2009 income was $13,762. He was certified as an Automotive Service Technician. His 2011 income was $21,438. His 2012 income was $18,383.
In March 2014 Allen broke his wrist and could no longer work at Nissan where he had been employed as a Registered Automotive Apprentice. He received employment insurance as soon as he was eligible.
Allen started work as a security guard at a Richmond St. club in June 2014. He decided that he wanted to complete the educational designation as an automotive apprentice with Ministry of Training, Colleges and Universities, starting on 2 September 2014, with classroom training. This is the classroom part of the apprenticeship to be a mechanical technician. He was attending college on a part-time basis or co-op program, and earned money at the same time as attending school. The father says he does not speak to Allen. In 2014 Allen was working part-time. There was no evidence about Allen's current situation.
Allen returned to school in 2009 and then again September 2014 to a program that provided for a combination of school and work periods. He was earning income during these periods. There was no evidence as to when he completed the first program. There was no evidence about his tuition expense during the period from 2014 onwards. There was no evidence about Allen's income in 2013 or 2014. There was no evidence about his current situation. There was inadequate evidence about Allen for the court to make a determination about his eligibility for child support during this period. On the basis of the evidence presented, Allen's period of dependence for child support purposes (F.L.A. s. 31(1)) ends in June 2009.

Brian

Brian was born 2 April 1993 and is now 22 years old. He turned 18 on 2 April 2011 and graduated from high school on 30 June 2011. Following graduation and through 2012, he found it difficult to find employment. He worked part-time at Best Buy earning minimum wage. His 2011 income was $6,355.25. His 2012 income was $13,816. His 2013 income was $17,246.93.
On 5 May 2014 Brian started at George Brown College full-time in the Electrical Techniques Program. He continues to work part-time at Best Buy. There was no evidence about his income in 2014. The tuition is $2,362 per semester (there was no evidence as to how many semesters there are per year, nor how many years the program lasts). Brian does not qualify for government student loans. The mother says that she asked the father to contribute towards the tuition costs. The mother's lawyer sent invoices to the father's lawyer on 17 April 2014 and 9 June 2014, along with confirmation of enrolment. There was no response and the father has not contributed anything. The father says that he and Brian had a conversation about the expenses and the cost of school, and that the father offered to help and to contribute to the George Brown expenses for Brian directly to Brian. There was no evidence that any such payments were made.
Brian did not establish a status of permanent independence from his parents during the time he was out of school. He worked intermittently and at minimum wage jobs. He approached the father specifically about contributing to his school costs, and the father acknowledged that he had an obligation to do so, and agreed to make a contribution. Brian continues to work part-time. On the basis of the evidence presented, these are Brian's periods of dependence for child support purposes (F.L.A. s. 31(1)):

a) ending 30 June 2011; and,

b) starting again in 1 May 2014.

This is the support that should be paid (that is, the table amount) for the children, in these time periods:

Year	Jesse (J)	Allen (A)	Brian (B)	Support to be paid for:
2009	Ends 30 April	Ends June 2009		3 children to 30 April 2009 (J, A, B) 2 children to 30 June 2009 (A, B) 1 child from 30 June 2009 (B)
2010	Starts Sept. 2010			1 child from 1 Jan. 2010 (B) 2 children from 1 Sept. 2010 (J, B)
2011	Ends Sept. 2011		Ends 30 June 2011	2 children from 1 Jan. 2011 (J, B) 1 child from 30 June 2011 (J) 0 children from 30 Sept. 2011
2012				0 children for whole year 2012
2013				0 children for whole year 2013
2014			Starts 1 May 2014	1 child from 1 May 2014 (B)
2015				1 child from 1 Jan. 2015 (B)

These are the father's incomes in those years:

Year	Father's Income
1997	$28,479.00
1998	$24,653.00
1999	$32,720.00
2000	$40,824.00
2001	$40,081.00
2002	$43,601.00
2003	$36,697.00
2004	$19,637.00
2005	$38,601.00
2006	$39,831.00
2007	$41,179.00
2008	$42,877.00
2009	$44,018.00
2010	$40,966.00
2011	$46,853.00
2012	$51,711.97
2013	$54,664.00

The father earned more than the amount the original order was based on ($29,900) in almost every year since the order was made (except for one year, 2004). In many years he earned significantly more than the amount in the original order, and particularly from 2005 onwards (for the last ten years). It is appropriate to allow for adjustments to the table amount based on his income starting in 2005.
The table amount adjustments for those years should then be the following:

a) from 1 January 2005 on income of $38,601 for 3 children $725 per month;

b) from 1 January 2006 on income of $39,831 for 3 children $746 per month;

c) from 1 May 2006 on income of $39,831 for 3 children $769 per month;

d) from 1 January 2007 on income of $41,179 for 3 children $799 per month;

e) from 1 January 2008 on income of $42,877 for 3 children $836 per month;

f) from 1 January 2009 on income of $44,018 for 3 children $860 per month;

g) from 1 May 2009 on income of $44,018 for 2 children (Allen and Brian) $665 per month;

h) from 1 July 2009 on income of $44,018 for 1 child (Brian) $405 per month;

i) from 1 January 2010 on income of $40,966.00 for 1 child (Brian) $377 per month;

j) from 1 September 2010 on income of $40,966.00 for 2 children (Jesse and Brian) $618 per month;

k) from 1 January 2011 on income of $46,853.00 for 2 children (Jesse and Brian) $709 per month;

l) from 1 July 2011 on income of $46,853.00 for 1 child (Jesse) $433 per month;

m) From 1 October 2011 no support; and,

n) from 1 May 2014 on income of $54,664.00 for 1 child (Brian) $494 per month.

Retroactive Child Support and s. 7 Expenses

The principles set out in the D.B.S. cases regarding retroactive child support apply to the table amount and to s. 7 expenses: Selig v. Smith, 2008 NSCA 54, para. 25, 26. The court in the D.B.S. cases makes no distinction between the table amount of child support and s. 7 expenses for child support.

The s. 7 Special Expenses Child Support

The mother has claimed reimbursement for these s. 7 expenses, each of which she claims was incurred for all three children:

a) Braces (orthodontist expenses);

b) Dental expenses not covered by her insurance; and,

c) Tuition for post-secondary education.

The mother's claim for special expenses and retroactive special expenses is brought under s. 7 of the Child Support Guidelines, Ontario Reg. 391/97:

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities. O. Reg. 391/97, s. 7 (1) ; O. Reg. 446/01, s. 2.

Definition, "extraordinary expenses"

(1.1) For the purposes of clauses (1) (d) and (f),

"extraordinary expenses" means

(g) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

(h) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child,

(iv) the overall cost of the programs and activities, and

(v) any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1.

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. O. Reg. 391/97, s. 7 (2) .

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. O. Reg. 159/07, s. 2.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. O. Reg. 159/07, s. 2.

The list of special and extraordinary expenses under s. 7(1)(a) to (f) is exhaustive; if a claim doesn't fall within any of the listed categories, it must be dismissed: Kilrea v. Kilrea, para. 13.
All special expenses must meet the tests of necessity and reasonableness set out in s. 7(1) of the Guidelines. The onus falls on the applicant who seeks special or extraordinary expenses under s. 7 of the Guidelines to prove that the claimed expenses fall within one of the categories, and that the expenses are necessary in relation to the child's best interests, and reasonable having regard to the parental financial circumstances: Park v. Thompson.
In Titova v. Titov, 2012 CarswellOnt 15666 (Ont. C.A.), the Ontario Court of Appeal set out the following steps for determining whether to make an award for section 7 special or extraordinary expenses:

a) Calculate each party's income for child support purposes;

b) Determine whether the expense in question falls within one of the enumerated categories set out in section 7 of the Guidelines;

c) Determine whether the expense is necessary in relation to the child's best interests and is reasonable in relation to the means of the spouses and to those of the child and to the spending pattern prior to separation;

d) If the expense falls under section 7(1)(d) or (f), determine if the expense meets the definition of "extraordinary;"

e) Consider what amount, if any, the child should reasonably contribute to the payment of the expense; and

f) Finally, apply any tax deductions or credits to reach the net amount of the expense.

Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 69

The Mother's Actual Claims for S. 7 Expenses

These are the amounts claimed by the mother as special expenses for the years in question, for these special expenses:

a) Braces;

b) Dentist; and

c) Tuition.

Braces

Year	Jesse	Allen	Brian	Yearly total
2001	$2,300			$2,300
2002	$2,100			$2,100
2003	$1,160			$1,160
2004
2005		$1,234	$1,334	$2,568
2006		$4,046		$4,046
2007
2008
2009
2010		$100	$950	$1,050
2011			$2,785	$2,785
2012			$1,100	$1,100
2013			$500	$500
Totals	$6,894	$6,330	$4,385	$17,609

Dentist

Year	Jesse	Allen	Brian	Unattributed	Yearly total
2001	$178.11				$178.11
2002	$233.58				$233.58
2003
2004			$649.92		$649.92
2005		$42.11			$42.11
2006		$851.11		$148.89	$1,000
2007
2008
2009
2010			$471.17	$2,953	$3,424.17
2011			$160.13		$160.13
Totals	$851.11	$560.58	$1,323.33	$2,953	$5,688.02

Tuition

Year	Jesse	Brian
2008	$3,335.20
2009
2010	$6,139.74 (Trios $15,660 – OSAP $9,520.26 = $6,139.74)
2011
2012
2013
2014		$2,250
2015		$2,362
Total	$9,474.94	$4,612

Grand Total: $14,086.94

There were no claims made for any other s. 7 expenses (e.g., activities).
Regarding post-secondary expenses, those amounts appear to be net of the Ontario Student Award Program loans received. There were no claims made for any other post-secondary expenses (e.g., books, computers, travel, etc.).
The mother says that the father's proportionate share of these expenses (braces, dentist and tuition) over the years up to 2014 totals $26,146.93. It is unclear what percentage of incomes and splitting of expenses this claim is based on.

Legal Issues Regarding the Mother's s. 7 Claims

These are the issues to be determined regarding the s. 7 expenses claimed by the mother:

a) Is the mother entitled to claim s. 7 expenses on a retroactive basis, and if so, starting when?

b) Do all the expenses claimed by her properly qualify as s. 7 expenses?

c) What is the obligation of the children to contribute to the s. 7 expenses claimed?

d) Is the mother entitled to re-imbursement for the full amounts she has claimed? and,

e) What is the father's proper proportionate share of those amounts?

The Question of Entitlement: Do All the Expenses Claimed Properly Qualify as s. 7 Expenses?

An order for contribution to special and extraordinary expenses under s. 7 of the Guidelines is discretionary as to both entitlement and amount: Julien Payne and Marilyn Payne, Child Support Guidelines in Canada, 2009, Irwin Law (Toronto), p. 227, 231.
Therefore the court must first determine the issue of entitlement for a particular expense. A review of the cases reveals that judges across Canada have wildly differing views of what constitutes reasonable and necessary extracurricular expenses - even in the case of the same type of expense and with parents with incomes in the same range. Sometimes they are allowed and sometimes they are not: Smola v. Roger, para. 11.
The mother did not categorize the expenses claimed according to the s. 7 list in either her pleadings or in her argument. The father was basically unwilling to contribute to any of these s. 7 expenses, in any amount. These are the entitlement findings regarding these various expenses:

a) Braces (orthodontist): The orthodontist expense is a health related expense being claimed under s. 7(1)(c). The expense for the orthodontist qualifies as a proper s. 7 expense. The father had contact with the children during the time they had braces, so he was aware that they had braces. On the motion, he questioned whether the braces were necessary or whether the braces were for cosmetic reasons. There was no evidence about this issue. This is an argument without merit. The parents shall share the amount of this expense, $17,609.

b) Dental expenses: The dental expense is a health related expense being claimed under s. 7(1)(c). The expense for dental care qualifies as a proper s. 7 expense. The father did not question the necessity for this expense. The parents shall share the amount of this expense, $5,688.02.

c) Tuition for post-secondary school: The cost of post-secondary education is being claimed under s. 7(1)(e). The expense for tuition qualifies as a proper s. 7 expense. The father had contact with the children while they were at school, and knew they were attending post-secondary education. He certainly knew when they were not attending post-secondary school. The parents shall share the amount of this expense, $14,086.94. There will be consideration below about the obligation of the children (under s. 7(2)) to contribute to these expenses.

Section 7(3) provides that the court shall take into account any income tax deductions available regarding the expense in determining the amount of the s. 7 expense that is to be shared. The mother's evidence regarding the cost of the s. 7 expenses did not take into account any tax deduction available to her. This issue was not argued in any detail, but was raised by the father in his factum. During argument, the parties were reminded of s. 7(3) and both parties were invited to make submissions on this issue. The mother's response was that she did not deduct any of these expenses for income tax purposes. That is not relevant, is not determinative, and is not the issue with respect to the court's determination of the net cost of these expenses.

Then the parties were instructed to do the calculations for all of these expenses and to provide the court with the net costs of these expenses. The mother was told that it was her obligation under s. 7(3) to present the court with the net cost of the expenses claimed. The father was specifically reminded that it was to his benefit to provide the court with the net cost of these expenses, in the event that the court were to order that he should share the expenses. There were two adjournments of the hearing of the motion specifically to allow this matter to be dealt with, and for the proper evidence to be presented. On both adjournments the parties were ordered to produce this information. Again, neither parent presented this evidence to the court. The court relied on the only evidence presented on this issue, that is, the gross costs of the expenses claimed.

The Children's Obligations to Contribute to Their Own s. 7 Expenses

Section 7(2) requires the court to determine the amount of the s. 7 expense that is to be shared by the parents and to take into account and to deduct the contribution, if any, from the child.
The table support for adult children may be adjusted, in part at least, by funds available to the children for their education, and an adult child has an obligation to reasonably contribute to his or her post-secondary educational expenses: Lewi v. Lewi, para. 42 and 47; Mondino v. Mondino, 2013 ONSC 7051, para. 63.
In Lewi v. Lewi, the Ontario Court of Appeal held that when the issue of contributions to post-secondary education costs for an adult child is before a court, the court has a broad discretion to consider the appropriate contribution, if any, of the child and of each parent to post-secondary education costs, after taking into consideration the means of the child and of each parent and any other relevant circumstance. A further factor relevant in such decisions is the reasonableness of the quantum of the expenses, taking into account the child's and the parents' means and any intention that the family may have formed on this issue prior to separation. There is no "formula" to establish the proper contribution from the child, if any contribution is required: Lewi v. Lewi, supra, 2006 (Ont. C.A.); Lacey v. Lacey, 2013 ONCJ 387, para. 60; Mondino v. Mondino, supra, 2013 (Ont. Sup. Ct.), para. 65.
With respect to the contributions expected from the child for post-secondary education expenses, the Court of Appeal set out the following considerations that should be kept in mind in carrying out the analysis of this issue:

a) As a general rule, there will be an expectation that a child with means will contribute something from those means towards their post-secondary education expenses;

b) There is no standard formula for determining the appropriate amount of the child's contribution, and this determination will depend on the unique circumstances of every case;

c) The determination of the contribution that a child should make to post-secondary education expenses should take into consideration both the child's income and capital assets. However, there is no requirement that the child contribute all of their income and/or capital assets towards these expenses. The extent of the child's contribution from both their income and capital is largely a matter of discretion for the trial judge, and will depend on the facts of each case;

d) The court emphasized the need to avoid creating disincentives for children to earn as much as possible to help pay their post-secondary education expenses. For instance, a general order that the child contribute a certain percentage of their earnings each year could create such a disincentive. It may be appropriate depending on the facts of the case to simply set an amount that the child is expected to contribute and to leave it to the child to earn as much as they can during the summers or throughout the school year, particularly where the child has assets from which they can draw for their financial needs; and,

e) If a child chooses to enrol in an educational program away from home at much greater cost, they should be expected to contribute a commensurately greater amount to their post-secondary education costs.

Lewi v. Lewi, supra, 2006 (Ont. C.A.); Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 73.

In cases involving post-secondary education costs, the court must determine the appropriate contributions of the child and each of the parents to the expenses. The extent to which a child will be expected to contribute to their post-secondary education costs depends on the particular facts and dynamics of each case. This duty to contribute does not necessarily require that the child devote their entire earnings to their educational expenses. If possible, children should be allowed to enjoy some of the fruits of their labour: Mickle v. Mickle, 2008 CarswellOnt 193 (ON CA); Wesemann v. Wesemann; Darlington v. Darlington; Roth v. Roth, 2010 CarswellOnt 2918 (ON SC).
Similarly, while there is tendency by the courts to support children with respect to their choice of a post-secondary education program, the child may be called upon to make a greater contribution to their education costs if various options are available and their choice comes with a higher price tag than other possibilities. Post-secondary education is a privilege, not a right. The law should create incentives for decision-making regarding appropriate educational programming that remains grounded in the reality of the family's financial means. Wesemann v. Wesemann, supra, 1999 (B.C.S.C.); Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 78.
These are the incomes that the children earned in these years. This is all the evidence about their incomes that was presented:

Year	Jesse	Allen	Brian
2007	$1,458.60
2008	$2,104.11
2009		$13,762
2010
2011	$2,104.46	$21,438	$6,355.25
2012	$160	$18,383	$13,816
2013			$17,246.93

The tuition costs for Jesse and Brian that the parents will share will not be reduced by a contribution from either child, and neither child is expected (for child support purposes) to contribute to the tuition costs in the years claimed for the following reasons:

a) Jesse: The claim for contribution to Jesse's tuition costs involves the years 2008 and 2010. Jesse earned a modest amount of income in 2008 ($2,104.40), and should not be expected to contribute any of that amount towards the tuition cost (which was $3,335.20). Jesse did not earn income in 2010. His contribution towards the tuition cost that year is the O.S.A.P. loan of $9,520.26 (Vohra v. Vohra, 2009 ONCJ 135, para. 32).

b) Brian: The claim for contribution to Brian's tuition costs involves the years 2014 and 2015. There was no evidence that Brian earned income in those years.

The Question of Amount: Is the Mother Entitled to Re-imbursement for the Full Amounts she has Claimed?

The entitlement test has been met for the s. 7 expenses for braces, dentist and tuition. The amounts claimed will need to meet the necessary and reasonable test under s. 7(1). The court must take into account the necessity of the expense in relation to the child's best interests, and the reasonableness of the expense in relation to the means of the parents, and those of the child, and in relation to the spending pattern of the parents in respect of the child during cohabitation.
Claims for s. 7 expenses must be supported by relevant evidence. But the court has the discretion to make an order based on estimates (s. 7(1)). The court also has discretion to order a contribution for all or any portion of a proper s. 7 expense (s. 7(1)).
The quality of the materials produced regarding the s. 7 expenses was generally inadequate and varied widely. The mother produced documentation proof for some, but not all, of the various special expenses claimed. There was no evidence whether there was any money received by the mother from other sources to help her with these large expenses for the children, over a long period of time.
The father did not dispute that these expenses were incurred or that they were paid. He queried whether the amounts claimed were properly supported by invoices, and questioned whether the amounts claimed took into account any insurance coverage available and any tax deductions available. But basically, he simply said he should not have to contribute towards them.
The court should not have to struggle through the evidence provided to be able to determine what amounts are actually claimed, whether or not the amounts claimed fall properly under special expenses, whether the amounts claimed are properly proven, and whether the amounts are reasonable. That is, however, what was required in this case. At the request of the court, the mother prepared a chart of the amounts she wanted. The material was not organized, was incomplete, and was often difficult to follow. Information had to be collected from several different sources in the court file in order to get a complete picture of the mother's claims. The onus is on her to prove these expenses.
Inferentially, then, the mother relied on s. 7(1), permitting a parent to estimate the amount of the expense claimed, and permitting a court to make an order based on such an estimate, and an order for all or any portion of the expenses.
To be allowed as s. 7 expenses, the amounts claimed must be necessary in relation to the child's best interests, and reasonable in relation to the means of the parents. These are not expenses that the mother could ordinarily afford on her own, without the contribution of the father. These expenses are necessary for these children to meet their potential. These categories (health care costs, and post-secondary education) are essential elements of a child's well-being and advancement. They are both necessary in relation to the children's best interests, and reasonable in relation to the means of the parents (particularly in relation to the father's means).
The father's conduct in this case is unacceptable. He has abandoned his sons and burdened the mother with the responsibility of providing for their support and their post-secondary education. He should not be able to rely on his own misconduct in order to defeat the mother's claims: George v. Gayed, supra, 2014 (Ont. Sup. Ct.), para. 94.
The mother did not provide the net cost of these s. 7 expenses, despite the direct order of the court, and several opportunities to do so. Neither did the father provide this information, despite being advised that he was at some risk of the court relying on the gross numbers as the cost of these s. 7 expenses, should the court decide to order him to contribute to the expenses. There was also a direct order that the father should provide these amounts, and there were also several opportunities for him to do so.
If the court finds that the mother has not adequately proven these s. 7 expenses, and disallows her claim for them, the only beneficiary is the father. That would not be fair, appropriate or in the interests of these three children. The mother and the three children managed for many years on her modest income, and on a modest amount of child support, which was not paid regularly or consistently and was often not paid at all. In fact, the child support payment history here is so inconsistent and poor that the mother and the children could not rely on this money at all, and they should have been able to do so. That is what child support is for. The father should not now be rewarded for his many years of blameworthy conduct regarding the payment (and non-payment) of child support by being excused from paying the amounts of child support that should have been paid as they accrued and as the children incurred these s. 7 expenses.
These are the findings regarding the proper amount the mother can claim for these expenses (that is, the determination of the question of amount):

a) Braces (orthodontist): The parents shall share the amount of this expense, $17,609;

b) Dental expenses: The parents shall share the amount of this expense, $5,688.02; and,

c) Tuition for post-secondary school: The parents shall share the amount of this expense, $14,086.94.

The mother may claim a contribution and the father shall contribute to these expenses under s. 7:

Expense	Amount
Braces	$17,609
Dentist	$5,688.02
Tuition	$14,086.94
Total	$37,383.96

The mother asks that the father contribute to the s. 7 expenses in proportion to their incomes for the relevant years. The mother says that the father's proportionate share of these expenses (braces, dentist and tuition) over the years up to 2014 totals $26,146.93. It is unclear what percentage of incomes and splitting of expenses this claim is based on. It appears that the range of the proportionate share she is claiming is from 65%:35% (father: mother) to 87%:13% (father: mother). In other words, she claims that the father should pay between 65% and 87% of the s. 7 expenses. This proposal was not explicit in the mother's material or argument, but rather these calculations were presented by the father in his factum.
The total of the allowable s. 7 expenses to be shared by the parents is $37,383.96. Based on their respective incomes over the years, the father's contribution to these expenses would be more than 50%, as he always earned significantly more than the mother. However, on an overall fairness analysis of all the circumstances in this case, it is fair, just and appropriate that the father contribute 50% of the special expenses claimed. The parents shall share these expenses equally. The father shall pay to the mother $18,691.98 as his contribution to the s. 7 expenses of the children for braces, dentist and tuition up to 31 December 2015.
There are several reasons for this. All of these claims relate to dental health and education, essential s. 7 expenses. None of the expenses claimed by the mother in this case relate to activities by the children (i.e., sports, music lessons, extra-curricular activities, etc.). The father was having contact with the children during these years. He knew that the children were in post-secondary education. He certainly knew when they were not in school (and therefore not eligible for continued child support). And finally, these expenses are being calculated and awarded on a retroactive basis.

Orders

There will be the following final order:

a) the order dated 16 March 1998 is changed as follows;

b) the father shall pay the table amount of child support for the children as follows:

  i. from 1 January 2005 on income of $38,601 for 3 children $725 per month;
  
  ii. from 1 January 2006 on income of $39,831 for 3 children $746 per month;
  
  iii. from 1 May 2006 on income of $39,831 for 3 children $769 per month;
  
  iv. from 1 January 2007 on income of $41,179 for 3 children $799 per month;
  
  v. from 1 January 2008 on income of $42,877 for 3 children $836 per month;
  
  vi. from 1 January 2009 on income of $44,018 for 3 children $860 per month;
  
  vii. from 1 May 2009 on income of $44,018 for 2 children (Allen and Brian) $665 per month;
  
  viii. from 1 July 2009 on income of $44,018 for 1 child (Brian) $405 per month;
  
  ix. from 1 January 2010 on income of $40,966.00 for 1 child (Brian) $377 per month;
  
  x. from 1 September 2010 on income of $40,966.00 for 2 children (Jesse and Brian) $618 per month;
  
  xi. from 1 January 2011 on income of $46,853.00 for 2 children (Jesse and Brian) $709 per month;
  
  xii. from 1 July 2011 on income of $46,853.00 for 1 child (Jesse) $433 per month;
  
  xiii. from 1 October 2011 no support; and,
  
  xiv. from 1 May 2014 on income of $54,664.00 for 1 child (Brian) $494 per month.

c) for post-secondary education, each parent will contribute equally towards the cost of post-secondary education, which costs include tuition, books, supplies, equipment and other incidental expenses. The mother shall advise the father in writing of the expense. For any expense claimed by the mother, she shall deliver proof of the expense to the father on a quarterly basis. The parents shall share these expenses equally;

d) the father shall pay his 50% share of the s. 7 expenses of braces, dentist and tuition for the three children up to 31 December 2015 in the amount of $18,691.98 (as calculated in these reasons);

e) the father shall produce to the mother every year, by 1 June, starting in 2016, copies of his Income Tax Returns and Notices of Assessment, pursuant to ss. 24.1 and the disclosure requirements of the Child Support Guidelines;

f) this order results in arrears in child support (in both the table amount and s. 7 expenses). The father shall pay arrears of child support, in addition to the ongoing table amount and s. 7 expenses, in the amount of $200 per month starting 1 March 2016, until all arrears are paid in full. When there is no longer any table amount of child support being paid, the arrears payment will increase to $700 per month. If there is any default in the child support monthly payments of longer than 30 days (either for ongoing support or for arrears support payments), the entire amount of arrears then owing is due and payable immediately; and,

g) the Family Responsibility Office may enforce this order by garnishment.

Conclusion

This litigation and the resulting retroactive award of both the table amount and the s. 7 expenses is not a good process for the payment of child support for anyone in this family. It was not in the children's interests to have been receiving for many years a lower amount of child support than they were entitled to. It was not in the mother's interest, and certainly now, it will not be in the father's interests.
While retroactive child support awards should be available to help correct these situations when they occur, the true responsibility of parents is to ensure that the situation never reaches a point when a retroactive award is needed: D.B.S., supra, 2006 (S.C.C.), para. 135.
The parents should not have allowed this to happen. The parents have communicated poorly over these issues. They say they have had no contact. This is regrettable. They have three children together, and cannot simply refuse to deal with each other around these issues. They have a responsibility to have sufficient contact to resolve these financial issues regarding their children. To do otherwise is self-indulgent. And to do otherwise has serious consequences for both of them, and for their children. In refusing to have any contact on these financial issues for many years, these parents have not acted in their children's best interests.

Costs

The parties may make submissions for costs. The scheduling office can set up a date for costs to be argued. The request for such a date shall be made before 22 February 2016.
This matter has been costly and time-consuming for the parents. There is blame to go around on both sides here. It may be that neither parent should seek costs of this litigation. The parents should discuss this issue carefully with their lawyers.

Released: 4 February 2016

Justice Curtis