WARNING
The court hearing this matter directs that the following notice be attached to the file:
The court has ordered the exclusion of the public from the hearing of this case under subsection 135(2) of the Courts of Justice Act and has expressly prohibited the disclosure of any information about the child. This subsection and subsection 135(3) of the Courts of Justice Act, which deals with the consequences of failure to comply with subsection 135(2), read as follows:
135.— (2) EXCEPTION — The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.
(3) DISCLOSURE OF INFORMATION — Where a proceeding is heard in the absence of the public, disclosure of information relating to the proceeding is not contempt of court unless the court expressly prohibited the disclosure of the information.
Subrules 31(5) and 31(6) of the Family Law Rules state as follows:
31.— (5) Contempt orders.— If the court finds a person in contempt of the court, it may order that the person,
( a ) be imprisoned for any period and on any conditions that are just;
( b ) pay a fine in any amount that is appropriate;
( c ) pay an amount to a party as a penalty;
( d ) do anything else that the court decides is appropriate;
( e ) not do what the court forbids;
( f ) pay costs in an amount decided by the court; and
( g ) obey any other order.
(6) WRIT OF TEMPORARY SEIZURE — The court may also give permission to issue a writ of temporary seizure (Form 28C) against the person’s property.
ONTARIO COURT OF JUSTICE
DATE: March 9, 2021 COURT FILE No.: Toronto D695/99
BETWEEN:
R. J. Applicant / Motion to Change
— AND —
T. J. Respondent
Before: Justice Debra Paulseth Heard on: February 24 and 25, 2021 Reasons for Judgment released on: March 9, 2021
Counsel: Mahzullah S. Uppal, for the applicant Peter Cozzi, for the respondent
Paulseth J.:
Overview
[1] The parties are the parents of K, born […], 1996. She is almost 25 years of age.
[2] The parents agreed upon a final court order, dated March 14, 2002, which provided, in part, for:
(1) final child support of $131. a month, based on the father’s imputed income of $16,627. and $246. a month for daycare expenses, based on the pro rata share with mother’s income of $20,000, commencing on April 1, 2002,
(2) financial disclosure of both parties’ complete income tax assessments by July 1 annually,
(3) Medical, dental, and prescription costs, in excess of benefits’ coverage, to be shared equally,
(4) All payments through Family Responsibility Office (FRO), and
(5) Costs to the mother of $500.
[3] Mother brought a Motion to Change in the spring of 2010 but it was dismissed on July 5, 2010, when she did not appear and had not filed the additional information directed by the court on April 22, 2010.
[4] Daycare ended for the child in 2008, but FRO continued to enforce the amount of $246. a month from the court order until 2018.
[5] FRO stopped enforcing all child support as of the end of January 2018.
[6] On February 5, 2019, mother commenced this Motion to Change. Mother is seeking:
(1) Retroactive child support to 2002, according to the Child Support Guidelines (CSG) based on the father’s income;
(2) Retroactive special expenses for K’s daycare/camp; drug and medical costs, including therapy; and post secondary for York university years from 2014 until January of 2019; and
(3) Insurance to secure the arrears.
[7] Mother reports income in 2018 of $72,561, increased by income splitting with her husband to $98,899. However, in 2019 her income was less than $20,000
[8] In response, father claims he will only pay retroactive for three years, according to the DBS court decision. He has worked for Toronto Transit Commission (TTC) since 2006 and earned $91,779 in 2018.
[9] With respect to the section 7 requests for K, father points to K’s own significant income by 2016, even though she was in university, and the fact that she was living independently for her last year at York University. Further, daycare expenses were paid by the father until January of 2018 when, in fact, daycare expenses were not incurred past July of 2007, according to him.
[10] The issue of whose benefits covered the child’s expenses is also before the court. The final order in 2002 clearly envisaged the sharing of medical costs not covered by insurance. Mother has been employed by the Peel school board or had purchased coverage. For each of her claims, she has indicated what amount was covered by her benefits and then seeks a 50% shared of the uncovered balance from father. Father has been employed by the TTC since 2006 and could have claimed some of the proposed expenses against his benefits but time limitations now prevent that coverage.
[11] The respondent claims the mother has delayed too long in bringing this Motion. The child cannot benefit now from these claims. Mother and her husband have total family income of close to $200,000, so K has not been disadvantaged.
[12] The applicant raises the issue of financial disclosure by the father. Father owned two properties, one bought in Toronto in 2009, and one bought in Barrie in 2017 for which he received rental income. He did not disclose the second asset and then sold both during this litigation.
[13] This hearing was set up as an expanded Rule 15 (under the Family Law Rules /FLR) focused hearing with documents and affidavits filed in place of evidence in chief and cross examination of each party.
Evidence for Mother
[14] As part of the July, 2002 court order, the parents were to exchange annual income tax assessments by July 1st.
[15] When the parties were in court in 1999 and in 2000, adjustments to the amount of child support were made each time based on the father’s current income. These changes are clearly set out in those orders. As a result of this repetitive process, mother believes father knew the importance of providing accurate and current income information.
[16] In both the 1999 and 2002 court proceedings, father requested “no access” orders, which were made by the court.
[17] In 2006, father began work with the Toronto Transit Commission (TTC). He has benefits, annual increases in his salary, and overtime pay.
[18] The court order of 2002 ensured that mother did not know his employment address but father was obligated to advise FRO of any changes of employment.
[19] After the 2002 order, father took no steps to see his daughter until they re-connected in 2014 through a third party.
[20] Mother pursued a series of jobs and community college before obtaining her university degree and teacher’s college certificate. While attending school, she worked part time. In 2004, mother met T.J. and they married in 2006.
[21] Mother graduated in 2009 and worked for the Peel Board of Education. Recently the family has relocated and she is working for the Hastings Board.
[22] T.J. is a mechanic and owns his own business, which operates as a limited company, of which mother technically owns 50%. His accountant manages their tax returns and advises on the income splitting. T.J .has always supported mother and K. He runs his business out of their home in […] and they own a rental unit in Belleville. Together they make about $200,000 a year.
[23] K has always resided with mother. Mother always paid for K’s necessary medical, dental, and prescription costs, in excess of her benefit plan. K’s medical issues included significant mental health challenges. The court order, agreed upon by the parents in 2002, required the parents to split the excess costs equally. As mother could never find out where father lived, she could never get any financial contribution to these costs.
[24] Mother points to the fact that father offers no explanation as to why he never provided updated financial information to her.
[25] From 2014 to 2018, father and K were in communication, primarily by text message. Father requested that these messages be produced and he included some but not all of them in his court documents. At no point in the texts did father ask for the home address of mother and K. In cross-examination, father said he did ask K but she said she couldn’t give it to him.
[26] From at least 2017, father knew from K that K was suffering from mental health issues. For examples, text messages from that year indicate that :
(1) K had asked father for medical history and he hadn’t responded; he said he lost his phone;
(2) Father knew about K’s hospitalization; K told father about several surgeries she needed as well as her eating disorder;
(3) Father told K he wouldn’t go to her graduation if the mother was there – he said she had to choose between mother and him attending – he later apparently changed his mind but the damage was done, according to K;
(4) Father had complained to K when they first reconnected that her mother had ruined his life and he couldn’t trust another woman again;
(5) K asked father to apologise to mother and then she would invite him to her graduation; father said he wasn’t a puppet to do what she told him; and
(6) K told father about her mental health difficulties and father complained about his child support payments.
[27] Mother found father through her daughter’s iphone in 2018. She wrote to him to try to resolve the outstanding financial issues. She then retained counsel and brought this Motion to Change. Mother also agreed to mediation and actually funded her half of the process.
[28] In this Motion, father did not volunteer his financial situation. Mother did not know he worked for TTC and had benefits that would have been helpful to K. Counsel for mother had to bring a motion to obtain income tax disclosure from father for periods more than 3 years before this motion was brought.
[29] Mother proposes guideline amount of CSG based on father’s line 150 income, which would be:
(1) 2010- $ 677 a month on $74,620,
(2) 2011 - $ 676 a month on $74,371,
(3) 2012- $ 720 a month on $79,363,
(4) 2013 - $ 657 a month on $72,037,
(5) 2014 - $ 593 a month on $64,125,
(6) 2015 - $ 682 a month on $75,155,
(7) 2016 - $ 756 a month on $84,611,
(8) 2017- $ 846 a month on $96,108,
(9) 2018- $ 812 a month for 5 months September to January of 2019- (noting that K was not in school full time from January, 2018 until she returned in September of 2018)
[30] Mother agrees that father should obtain a credit for $131. a month that he has paid in child support until January of 2018.
[31] Mother wants child support until January 31 of 2019, when K ceased being in school full time and obtained her degree.
[32] Mother indicates that K has struggled with mental health challenges, demonstrated through an eating disorder, suicidal thoughts, and breakdowns that required counselling, therapy and medication. Detailed costing records, insured portions of benefits, medical records, and copies of doctors’ and hospital notes were provided by mother. Hundreds of well documented records were produced and not cross-examined upon or even questioned, with one exception.
[33] Mother redacted what she believed to be extraordinarily private phrases in K’s medical records. Counsel for father in cross-examination held one up to the light and asked mother to confirm that it said that K was involved in prostitution. Mother cried. Counsel for father said it was relevant to how much money K made.
[34] Although accepted to university for September of 2014, K had to defer due to mental health difficulties. It is clear that these challenges plagued her throughout her university career, forcing her to take some additional time off in early 2018. Mother supported her and was there when she faltered. K has now graduated from York University.
[35] K attended full time university as follows:
(1) January, 2015 until January, 2018, and
(2) September, 2018 until January, 2019.
[36] Mother helped K with her tuition, books, application costs.
[37] K also worked several part time jobs throughout her university years.
[38] K had to take January until September of 2018 off school due to mental health difficulties.
[39] K was renting an apartment while attending school from August of 2017 until December of 2017 and from January until April of 2018, when she was not in school. In May of 2018, she moved back home and began school full time again in September of 2018.
[40] All of K’s T4’s and Notices of Assessments were filed with the court. In two of the relevant years, 2016 and 2017, K’s income is artificially inflated by her step-father’s income splitting. That amount is clearly identifiable in the tax documents.
[41] Documentation regarding K’s tuition, scholarships, and RESP withdrawals are all filed with the court.
[42] The RESP account is clearly one that was funded by the mother, although father indicated one had been started for K shortly after her birth. There is no evidence that father contributed to one in the early court orders from 1999 to 2002.
[43] The full cost of K’s post secondary education was funded by mother, subject to K’s contributions to rent, the RESP funds, and scholarships.
[44] Mother points to significant gaps and inconsistencies in Father’s financial disclosure. He filed one Form 13, dated March 7, 2019 and then only affidavits indicating “no change” until his trial Form 13, February 9, 2021. Of note:
(1) He indicates a mortgage/rent payment, but doesn’t initially disclose he owns his property on Military Trail subject to a mortgage.
(2) He does not disclose when he sells that property on December 16, 2019.
(3) He purchased property in Barrie on August 31, 2017. He earned rental income on that property and sold it in December of 2020. Neither the purchase, income nor sale were disclosed by father.
(4) He indicates deductions for pension but doesn’t disclose he has a pension as an asset.
[45] Banking statements indicate that from July 20, 2017 to May 31, 2019, father has large amounts of deposits in addition to his employment income:
(1) ATM deposits of $31,660,
(2) E transfers of $16,650,
(3) Transfers from his partner of $15,262, and
(4) E transfers from another account of $6,850.
[46] Father had a car, which he swore was worth $25,000 in 2017 which is not mentioned in his Form 13 now. He said he sold it for $5,000 recently.
[47] As of February 9, 2021, father claims that he owns nothing; has no debts; earns $85,000 a yea; has expenses for his two bedroom apartment and lifestyle of $78,000 a year; and has $125,000 in the bank. He also has an insurance policy and pension through his employer.
Evidence for Father
[48] Father lives with his current partner and their two young girls.in an apartment that they moved into two months ago, presumably after the home of 10 years sold in December of 2020. He says this relationship has been on and off.
[49] It was father’s evidence that he barely looked at the court order of 2002 and did not appreciate that he had to give mother his annual Notices of Assessment and that he had to keep FRO advised of his employment.
[50] Father admits that he had counsel or duty counsel at all appearances in 1999 through to 2002.
[51] Father says that child support is not owing after December of 2017 as K withdrew from parental control
[52] Father indicates that the 2002 court order does not provide for automatic support adjustments based on income so he did not agree to pay in accordance with the Guidelines. He does acknowledge that he did have a continuing obligation arising from that court order to provide financial disclosure. He believed it would then be up to mother to do something with that information.
[53] Father maintains that he always had a driver’s licence and kept FRO advised of his address. It was up to mother to find him.
[54] There is no dispute that father is owed a credit for daycare expenses paid past August of 2008.
[55] Father acknowledges that a substitutional service order was made during mother’s Motion to Change in 2010, providing that he be served through FRO. He acknowledges the affidavit of service by a FRO employee. He does not indicate whether he received the information and why he did not respond. In cross-examination he says he did not receive anything.
[56] In 2014, he said that he tried to rehabilitate his relationship with K. By 2016, K was attending university and appeared to him to be completely independent, having withdrawn from her mother’s control and financial support. He does not say what he based that belief on.
[57] Further, father argues that K completely repudiated her relationship with him in 2016 and relies upon messages from 2014, 2016, and 2018:
(1) In the March of 2014 messages, father asks when she will be home from Florida, where she was visiting grandparents and she replies “Sunday”.
(2) In August of 2016, K says she didn’t respond to him earlier as she had been away and then says “I will let you know when I want you back in my life”.
(3) On February 13, 2017, K asks if there is ”any mental illness in the family?”; he does not respond.
(4) The messages in June of 2018 are summarized above; basically father complains about mother’s treatment of him in the past as a reason why he did not have an earlier relationship with K.
[58] In March of 2018, FRO contacted him to confirm that child support deductions would terminate. Father did not realize that this was after mother had provided information to FRO.
[59] Because mother and K’s step-father earn about $200,000 a year, father argues that K has not needed any further support from him. In his view, K has not been disadvantaged by not receiving any additional child support.
[60] Father first heard of the additional section 7 expenses in 2018. He could have claimed reimbursement for these through his work benefits plan if he had received them earlier.
Relevant Time Period
[61] Mother brought a Motion to Change in 2010. As part of that motion, she obtained a substitutional service order on the father through FRO. On March 12, 2010, a FRO employee swore an affidavit confirming this service by mail on the same date. The court order indicated it would be effective 5 days later.
[62] At the return of the motion in April,2010, in Brampton, the matter was adjourned and mother was advised to provide additional information in an affidavit to support her Motion.
[63] On July 5, 2010, no one appeared before the court and despite holding the matter down and paging for the parties, the court was forced to dismiss the motion.
[64] Mother says that she was at court that day and spoke to duty counsel and the clerk, but never heard her case being called. There is no further information before the court about the proceeding in 2010.
[65] As mother did not pursue her claim at that point, I will not grant relief in this matter that pertains to time periods before July, 2010.
[66] I accept the substitutional service order made by the court that permitted notice to father through FRO.
[67] I accept the affidavit of the FRO employee that service on father was effected. Father also testified that he always kept FRO advised of his address. Father must be taken to know at that point that mother was seeking annual increases in child support, and additional section 7 (CSG) expenses. She was offering to provide receipts for section 7’s through FRO.
Legal Framework and Analysis
Issue: Retroactive Child Support
[68] Mother seeks child support based on father’s income from his Notices of Assessment, from 2002. This date is adjusted by the court to July 1 of 2010, for reasons set out above.
[69] Father does not agree to pay any retroactive support.
Motions to Change in the Family Law Act
[70] Motions to change support are governed by subsection 37 (2.1) of the Family Law Act (FLA) which reads as follows:
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,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33.
[71] The court’s authority to make a retroactive support order on a motion to change is contained in clause 34 (1) (f) of the Family Law Act. This clause reads as follows:
Powers of court
34 (1) In an application under section 33, the court may make an interim or final order,
…….(f) requiring that support be paid in respect of any period before the date of the order;
Preliminary Issues
The Child Support Guidelines Approach
[72] The approach of the Child Support Guidelines is a legal presumption. The Ontario Court of Appeal has discussed this in Lewi v. Lewi, 2006 ONCA 15446, [2006] O.J. No. 1847 CA. Although Counsel for father made some closing submissions that may have referred to this presumption, there was no evidence to dislodge it. Several cases have found that for a young person living at home for their first post secondary degree, the guidelines are perfectly adequate and appropriate. ( see Arnold v. Washburn, 2000 ONSC 22732, [2000] O.J. No. 3653 (SCJ).)
[73] In this case, K primarily lived at home while attending university full time. I accept that the Guidelines are the appropriate tool to use in this case.
Jurisdiction for Adult Child
[74] K is not currently eligible for child support. She has graduated from university. This issue was recently reviewed by the Supreme Court of Canada in Michel v. Graydon, 2020 SCC 24. The court decided that there was jurisdiction to order this. The court upheld the trial decision that adjusted child support for 11 years in accordance with the payor’s actual income.
[75] It is also arguable that K was eligible until the month before mother filed this Motion to Change.
Entitlement for an Adult Child
[76] In Meyer v. Content, 2014 ONSC 6001 (par. 32), Justice Chappel collated the considerations from the case law about the factors to determine if a child is entitled to support as follows (refined from her decision in Menegaldo v. Menegaldo, 2012 ONSC 2915):
The case-law has clarified that in order to establish that a child is unable to withdraw from parental charge due to enrolment in ongoing educational studies, the court must be satisfied that the child's educational plan is reasonable taking into account the child's abilities, the plans and expectations of the parents in regard to the child's post-secondary education, and the needs and means of the child and the parents. As the Saskatchewan Court of Appeal stated in Geran v. Geran, 2011 SKCA 55, 2011 CarswellSask 333 (C.A.) at para. 15, the ultimate question in deciding the issue of entitlement in these circumstances is whether the child is "unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child." The courts have outlined a number of factors which should be considered in answering this question. The following is a collective list of some of the factors, as derived from the cases of Whitton v. Whitton (1989), 1989 ONCA 8868, 21 R.F.L. (3d) 261 (Ont. C.A.), Farden v. Farden (1993), 1993 BCSC 2570, 48 R.F.L. (3d) 60 (B.C. Master), Darlington v. Darlington (1997), 1997 BCCA 3893, 32 R.F.L. (4th) 406 (B.C.C.A.) Bradley v. Zaba (1996), 1996 SKCA 4930, 18 R.F.L. (4th) 1 (Sask. C.A.), Geran v. Geran, Supra., Rebenchuk v. Rebenchuk, Supra., Haist v. Haist 2010 ONSC 1283, 2010 83 R.F.L. (6th) 147 (Ont. S.C.J.) and Caterini v. Zaccaria, 2010 ONSC 6473, 2010 CarswellOnt 9344 (S.C.J.):
Whether the child is in fact enrolled in a course of studies and whether it is a full-time or part-time course of studies.
Whether the child has applied for or is eligible for student loans or other financial assistance, or has received any bursaries or scholarships, and if so, the amounts received.
The ability of the child to contribute to their own support through part time employment.
Whether the child has a reasonable and appropriate education and career plan, or whether they are simply attending an ongoing educational program because there is nothing better to do.
In reviewing the child's education and career plan, important factors include the nature and quality of the plan, the duration of the proposed study period, the prospects of the child succeeding in the program, the potential benefit of the studies and the associated cost of the course of study.
The age, qualifications and experience of the child.
The aptitude and abilities of the child, their level of maturity and commitment and their sense of responsibility.
Whether the child is performing well in the chosen course of studies.
What plans the parents made for the education of their children, particularly where those plans were made during cohabitation. In considering this factor, the court should bear in mind that reasonable parents are ordinarily concerned about treating each of their children comparatively equally.
The means, needs and other circumstances of the parents and the child.
The willingness of the child to remain reasonably accountable to the parents with respect to their post-secondary education plans and progress. If a child is unwilling to remain accountable, or has unilaterally and without justification terminated their relationship with a parent, they may have difficulty establishing that they are unable to withdraw from parental charge based on a reasonable course of post-secondary education.
[77] It is not necessary to address all of the factors set out above to prove that the child remains entitled to support (Darlington v. Darlington, Supra.; Wesemann v. Wesemann (1999), 1999 BCSC 5873, 49 R.F.L. (4th) 435 (B.C.S.C.) at para. 11).
Has K repudiated her relationship with the payor/father?
[78] This is a factor to be considered – not the sole or determining factor in cases where the child is over the age of majority. The cases refer to the child unilaterally terminating the relationship and the relationship being terminated without reason. In my view, the threshold is high and there has to be a large portion of blamelessness on the part of the payor parent in order for this to be an overriding factor to defeat a claim of child support where a child would be otherwise entitled to support. See Turner v. Ansell, 2012 ONSC 2598, par. 13. Beach v. Tolstoy, 2015 ONSC 7248, at para. 39; Makdissi v. Masson, 2017 ONSC 6498, 2017 CarswellOnt 16972 (Ont. S.C.J.).
[79] This issue was argued by counsel for father as a surprise in his closing submissions. As the caselaw indicates, the threshold is very high. It is utter nonsense to suggest this factor applies in this case as father twice requested “no access” orders.
Has K withdrawn from parental control?
[80] Counsel for father argued that K was not entitled to child support as she had withdrawn from parental control. This argument had not been pled, nor mentioned in any of the material.
[81] A child is entitled to support, unless he or she voluntarily withdraws from parental authority. The defense of withdrawal from parental authority is limited to clear cases of free and voluntary withdrawal from reasonable parental control. J.L.E. v. R.B.E., [1998] O.J. No. 492 (OCJ); Letourneau v. Haskell (1979), 1979 ONSC 1963, 25 O.R. 139 (Ont. Co.Ct.).
[82] A good summary of the requisite factors for this argument can be found in O.G. v. R.G., [2017] O.J. No. 1287 (OCJ):
In sum, the factors that must be considered in determining whether a child has involuntarily withdrawn from parental control include the following:
(a) The onus is on the child to establish the involuntariness of her withdrawal from parental control.
(b) The standard necessary to find that the withdrawal is involuntary looks to eviction or unbearable conditions. But in considering what is unbearable, the court must engage in a contextual analysis of the factors that led to the child's withdrawal. A broad matrix of factors regarding both parent and child must be considered.
(c) The analysis must look to what is unbearable to the particular child who has withdrawn. What is unbearable for one child may not be for the other. A child and parent's difficulty coping with each other may be sufficient, depending on the control being exerted and the condition of the child. Similarly, an intolerable breakdown in their communication may also suffice.
(d) Implicit in the analysis is the notion that the control being withdrawn from must be reasonable for the withdrawal to be voluntary. A child's refusal to follow reasonable parenting limits for purely subjective reasons will likely make the withdrawal voluntary.
(e) The child's decision must be complete. It must be to, in the words of Clements J. in Haskell v. Letourneau, to "... cut the family bonds and strike out on a life of his own... [to assume] the responsibility of maintaining or supporting himself... to cut himself away from the family unit."
(f) The complete withdrawal must be from both parents.
(g) In considering whether the withdrawal is voluntary, the court can look to behaviour both before and after the withdrawal.
(h) One relevant aspect of behaviour after the withdrawal is whether the parent has attempted to repair his or her relationship with the child.
(i) Despite the onus placed on the child, the court must be cautious before finding on the facts before it that a child has clearly decided to voluntarily withdraw from reasonable parental control.
[83] Courts have noted that the exception is even narrower when the child suffers from emotional difficulties. Jamieson, supra, par. 35, citing L.G. v. E.G. and V.G. (1989), 1989 ONCJ 3487, 20 R.F.L. (3d) 157 (Ont. Prov. Ct.)
[84] A review of the facts in this case indicate clearly that this issue does not apply:
(1) K moved into an apartment for a small part of her university years.
(2) Mother helped to finance the apartment, tuition and other costs.
(3) There is no evidence that K withdrew from her relationship with Mother.
(4) K has had well documented health challenges throughout her university career.
(5) It was father who unilaterally withdrew from K.
Conclusion on Preliminary Issues
[85] Except for a short period of time, K lived at home and attended school full time. Her degree from York University is in Linguistics. She studied Spanish and spent a summer in Quebec studying French. There is no evidence that K withdrew from her mother’s authority. To the contrary, K suffered mental health challenges for all of the material time and her mother funded her therapy, education, and other supports. She tried renting an apartment for a period of time but eventually returned home to complete her degree.
General principles
[86] The Supreme Court in D.B.S. v. S.R.G., 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications:
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.
[87] None of the above factors are decisive or take priority and all should be considered in a global analysis (D.B.S. par. 99). 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 (D.B.S. – par. 133).
[88] Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S. - par. 97).
[89] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel v. Graydon, 2020 SCC 24, par. 25.
[90] Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (Michel – par. 132).
[91] Retroactive child support awards will commonly be appropriate where payor parents fail to disclose their increases in income. At any given point in time the payor has knowledge of what their support obligation should be, while the recipient parent may not (Michel - par. 32).
[92] It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one’s children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. (D.B.S., par. 95).
Applied to this Case:
(1) Father was under a legal duty to provide child support in accordance with his income. He knew that from the court appearances in 1999 to 2002.
(2) The court order is very clear that father was under an obligation to provide his annual tax returns.
(3) The order is also clear that father did not want mother to know where he worked or lived. He had waived access, twice.
(4) This retroactive award is only a way to hold father accountable for the proper amount of child support.
(5) The order for retroactive child support should be adjusted back to July 1, 2010.
Delay
[93] Courts should examine whether the reason for delay in bringing the application is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support (Michel – par. 111).
[94] A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted (Michel – par. 113).
[95] A delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. A delay motivated by any one of the reasons set out below should generally not be understood as arbitrary within the meaning of D.B.S.
a) Fear of reprisal/violence from the other parent.
b) Prohibitive costs of litigation or fear of protracted litigation.
c) Lack of information or misinformation over the payor parent’s income.
d) Fear of counter-application for custody.
e) The payor leaving the jurisdiction or the recipient unable to contact the payor parent.
f) Illness/disability of a child or the custodian.
g) Lack of emotional means.
h) Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.
i) Ongoing discussions in view of reconciliation, settlement negotiations or mediation.
j) The deliberate delay of the application or the trial by the payor.
These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other fear and danger (Michel – par. 86).
[96] It is generally a good idea to seek child support as soon as practicable, but it is unfair to bar from parents from applying for the financial support they are due because they put their safety and that of their children ahead of their financial needs or because they could not access justice earlier (Michel – par. 87).
[97] Courts may pay particular attention to the length of the delay after the beneficiary ceased to be an eligible child or after the reason that caused the delay has ceased to be. The longer the delay, the more weight may go against the justification. This tends to uphold the values of certainty and finality, with the goal of encouraging parties to move forward with their lives following family breakdown (Michel – par. 114).
[98] The better and more theoretically consistent approach is to allow the reason for delay to inform both whether a variation application may be heard and whether it should be granted or dismissed (Michel – par. 87).
[99] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest in certainty has returned
Applied to this case;
(1) Mother did not know where father was. She tried the substitutional service route twice before and he had not responded.
(2) When mother learned of father’s whereabouts in 2018, she contacted him to try to work out an agreeable solution. When that failed, she brought this Motion to Change in 2019.
(3) In my view Father was deliberately hiding in the weeds, while mother was running the marathon parenting this child.
Blameworthy Conduct
[100] Courts should apply an expansive definition of blameworthy conduct (D.B.S. – par. 106).
[101] Blameworthy conduct is anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. (D.B.S. – par. 106).
[102] Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award (Michel – par. 119).
[103] The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty (Michel – par. 34).
[104] A court order is presumptively valid when assessing conduct. However, the larger the difference between the order and what should be paid, the less reasonable it becomes to rely upon it. (D.B.S. – par. 65).
[105] Courts should not take a subjective approach to blameworthy conduct and try to ascertain intention. Intent can be a basis on which to increase blameworthiness, but the primary focus needs to be on the payor’s actions and their consequences (Michel – par. 118).
Applied to this case:
(1) Father failed to disclose his income in accordance with the clear wording of the 2002 court order.
(2) Father has significantly underpaid child support for many years.
(3) He has protected his own interests over his child’s right to an appropriate award. There is ample blameworthy conduct to go around father two or three times.
Circumstances of the child
[106] If there has been a hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour not only of an award, but also of extending the temporal reach of the award (Michel – par. 120).
[107] Any kind of hardship is not a necessary antecedent to making a retroactive support award. A payor’s support obligation does not disappear when the child no longer requires support. If this factor were to tip the balance against making a retroactive award, then, in essence, the payor will have profited from “holding off” on paying increased child support (Michel – par. 122).
[108] There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child (Michel – par. 123).
[109] The fact that the child did not have to suffer hardship because of the custodial parent’s sacrifice is not one that weighs against making a retroactive support order. Rather, the recipient parent’s hardship, like that of a child, weighs in favour of the retroactive support award and an enlarged temporal scope (Michel – par. 123).
[110] The fact that the recipient will indirectly benefit is not a reason to refuse to make the retroactive award of support (Michel – par. 123).
[111] Although not pled, counsel for father argued that K had withdrawn from parental control and had repudiated her relationship with her father. There is no evidence to support the former allegation and the latter is an absurdity, in that the father had twice refused an access order.
Applied to this Case:
(1) The father cannot profit from holding off paying child support in this case.
(2) If K has not been disadvantaged by the father’s failure to pay appropriate child support, it is because her mother, in particular, and her step father provided support to her.
(3) Mother does not have to prove the child suffered to obtain the appropriate amount of child support.
Hardship
[112] While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid (Michel – par. 125).
[113] If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship (Michel – par. 124).
[114] It must be taken into account that the payor had the benefit of the unpaid child support for the full time in which it was unpaid and such monies may have funded a preferred lifestyle or the very purchase of property which may now need to be sold (Michel – par. 125). This is a crucial part of the equation (Michel – par. 126).
[115] If children have gone without the appropriate level of support it often means that the recipient parent has been forced to go into debt themselves or spend all their monies, not on property, but on the child (Michel – par. 126).
[116] In all cases, hardship may be addressed by the form of payment (Michel – par. 124).
Applied to this case:
(1) Father has not sought to prove hardship in this case. He has argued the reverse, that the child has not been disadvantaged. I reject that argument.
(2) Father has played fast and loose with his financial disclosure. Despite having counsel, he claims:
(a) He said did not know he had to send Notices of Assessments annually since the court order of 2002
(b) He said he did not really read his Form 13 from March of 2019, where he failed to disclose his pension and life insurance
(c) He did not know when he filed the “no change” to his Form 13 affidavits that he needed to disclose the purchase and sale of another property asset and the sale of his home of 10 years.
(d) Father has a common law partner. Together they have decided that she would remain home to care for their two girls on a full time basis. Generally, they live on income of about $90,000
[117] I find no hardship in this case. Father has over $100,000. in the bank. He has disposed of two properties since this matter began. Father has not agreed to anything in this case. He has not sought any payment terms.
Date of Retroactivity
[118] 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). An earlier date may be appropriate if there is blameworthy conduct by the payor, but generally a retroactive award should not commence earlier than three years before formal notice was given.
[119] 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).
[120] The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness) (Michel – par. 36).
[121] The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty (Michel – par. 34).
[122] The court in Michel questioned whether it is now time to ask why the retroactivity of child support awards should not also correspond to the date when the support ought to have been paid. Today, parents know they are liable to pay support in accordance with the Tables and their actual income and that they will be held accountable for underpayment, even if enforcement of their obligations may not always be automatic (pars. 130 and 131).
Applied to this case:
(1) Father agreed to the 2002 order.
(2) Father also received notice of mother’s intention to vary and enforce the order when he was served pursuant to a court order in 2010.
(3) Father knew from his sporadic contact with K that mother did not know his whereabouts.
[123] Father should be held accountable from the date of the last court order in July, 2010.
Amount
[124] When the court orders a retroactive award, it 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.
[125] There are two ways that the guideline scheme allows courts to affect the quantum of retroactive awards (D.B.S. - par. 128). The first involves exercising the discretion that the guidelines allow. Courts may exercise their discretion with respect to quantum in a variety of other circumstances under the guidelines. See: ss. 3(2), 7, 9 and 10 of the guidelines (D.B.S. - par. 129). The second is by altering the time period that the retroactive award captures.
Applied to this Case:
[126] The guidelines provide a consistent expectation to the parents. They understood that expectation in 1999, 2000 and 2002.
[127] Father has argued that he should not pay any child support.
[128] I see no reason to diverge from the income guideline application in this case because:
(1) Father has ignored this legal obligation for a long time.
(2) Father has conducted this case in a very unreasonable manner; plainly put, his strategy has been “catch me if you can”.
(3) Child support is the right of the child.
(4) Although mother has married a responsible person who has supported her and K, I have no doubt that there have been many hard times for her and certainly for K. Regular financial support is a tremendous piece of security and stability.
End of child support:
[129] Section 31 of the FLA, provides the obligation to pay child support while the child is enrolled in full time school, or is unable to withdraw from parental control due to illness or disability.
[130] Father argues that K had withdrawn from parental control by 2018 as she earned about $30,000 that year.
[131] While it is true that K had a total income of $31,594, she was unable to attend school for the winter term from January until September of 2018, due to various health challenges.
[132] K had been renting her own apartment and contributing to its cost, while attending school in 2017 but had to move home in May of 2018. By September, she had resumed her studies full time and completed her degree in 2019. K had just turned 23.
[133] Mother is not seeking child support from January of 2018 until K returned to school full time in September of 2018. Child support would continue then until January 31, 2019.
[134] The law is clear that support can be reinstated for an adult child after a hiatus in entitlement. See: F. (R.L.) v. F. (S.) (1996), 1996 ONSC 8101, 26 R.F.L. (4th) 392 (Ontario General Division); MacLennan v. MacLennan, 2003 NSCA 9 (Nova Scotia C.A.). A gap of two years was permitted in Haley v. Haley, 2008 ONSC 2607, [2008] O.J. No. 293 (SCJ). Where young person was living with her boyfriend for two years, the court did not re-instate child support in Clancy v. Hansman, 2013 ONCJ 622.
[135] In his paper, “Child Support for Adult Children: When Does Economic Childhood End?” Professor Nicholas Bala suggests that when the question of reinstatement arises, the courts should consider:
(1) The time spent independently by the child. He suggests that time over two years may result in an unsuccessful attempt to be reinstated.
(2) The child’s living arrangements while independent. If the child is living in a common-law relationship then it will become more difficult to be reinstated.
(3) The child’s employment while independent. If the child can be considered to be reasonably supporting themselves, then reinstatement is more difficult.
(4) Intentions while independent. If it seems that the child has made a clear choice about their future that does not include education, then they will have more difficulty obtaining parental support.
[136] In this case, I find that K was clearly just taking a short temporary break to deal with mental health and medical challenges. She moved back home after this interval for more support and returned to school to finish her degree.
Conclusion on the Child Support Issue:
[137] The parties separated in 1999 and were in court frequently until final orders were made in 2002.
[138] It is clear from the final orders that:
- Father did not want mother to know where he worked.
- Father waived access.
- Father had receipts for the cost of daycare to support the original order and mother offered further receipts in her Motion to Change in 2010.
- Father knew the income upon which the order was based.
- Father knew he had to provide annual disclosure every year and advise of changes of employment.
[139] The child is entitled to the support owing under the Guidelines as she was residing with mother, except for the period of August of 2017 until April of 2018. She continued to be in full time school, however, throughout 2017. She was dependent upon Mother. Mother is not claiming support for the period from January until August of 2018, when K was not in school.
[140] The Guidelines apply.
[141] Mother made efforts to reach father. Her efforts were futile. Her mailed envelopes were returned in 2008 and 2010. Her substituted service orders in 2008 and 2010 also proved unsuccessful in getting his attention.
[142] The child is entitled to the support owing under the Guidelines, based on her father’s income :
Commencing July 1, 2010 $677 a month on $74,620
Commencing January 1, 2011 $676 a month on $74,371
Commencing January 1, 2012 $720 a month on $79,373
Commencing January 1, 2013 $657 a month on $72,037
Commencing January 1, 2014 $593 a month on $64,125
Commencing January 1, 2015 $682 a month on $75,155
Commencing January 1, 2016 $756 a month on $84,611
Commencing January 1, 2017 $846 a month on $96,108 until December 31, 2017
Commencing September 1, 2018 $812 a month on $91,799 until January 31, 2019
Issue: Retroactive Section 7 Expenses:
[143] With necessary modifications, the above legal framework is also applicable to retroactive section 7 expenses. See: Smith v. Selig (2008), 2008 NSCA 54, 56 R.F.L. (6th) 8 (NSCA); Hetherington v. Tapping, 2007 BCSC 209, 2007 BCSC 209 (BCSC); Surerus-Mills v. Mills, [2006] O.J. No. 3839 (SCJ).
[144] When mother brought her 2010 Motion to Change, which was served on father by FRO, she sought section 7 expenses for summer camp, school activities, medical and dental coverage. She also sought a mechanism to provide receipts for expenses.
[145] Mother is seeking an equal sharing of these expenses, mirroring the parents’ original agreement, but also when their incomes are taken proportionately for the relevant years, the father’s share ranges from 48.48% to 54.4%. I accept that mother’s proposal to share equally is very reasonable.
Daycare
[146] It was impossible for mother to contact father, despite efforts she made through two different substitute service orders: one through his brother in 2008 and in 2010 through FRO.
[147] Mother testified that the daycare costs ended when the child turned 12 years of age, the end of August 2008.
Order: The existing order for contribution by father for section 7 expenses for daycare is terminated September 1, 2008.
University Expenses:
[148] In this case, K remained at home while attending York University for the years – 2014 until the end of January of 2019, except for the period of January until April, 2018.
[149] Post secondary is a recognized section 7 expense. See ss7(1)(e) of the CSG. Apart from rent in the later years, mother is only requesting a contribution to the tuition costs, the total of which was:
2014 $2715.36
2015 $5847.68
2016 $8866.76
2017 $4768.56
2018 $1249.56
[150] K’s earnings during this time, subtracting the income tax splitting with her step-father, were:
2014 $7318 plus 2800 from RESP
2015 $6386 plus 6000 from RESP, and 2200 scholarship
2016 $5900 plus 1485 from RESP
2017 $8300 plus 902 from RESP
2018 $31594
[151] In Coghill v. Coghill, 2006 ONSC 28734 the court calculated the child’s expenses during the eight months the child was at university, deducted the contribution the child was able to make from summer earnings, apportioned the net expenses between the parents in proportion to their respective incomes and required them to pay their respective shares.
[152] In calculating post secondary expenses, I note that the mother’s request does not include the cost of books, transportation, internet, computer, and other living expenses a young person would have, while also living at home. Accordingly, I would calculate that K’s earnings and the RESP’s, modest until 2018, would only cover her daily costs, transportation, computer, and books. I would order the parents to share equally the cost of tuition, which totals $23,447.92. Father’s share would be 11,723.96
[153] The total cost to the mother of K’s rent, while she was in a post - secondary school program in 2017, was $2500. In addition, K herself contributed $1,250. I am excluding the rent from early 2018 when K was not in school. This amount is very reasonable. Further, rent is an important and necessary first step towards independence, which many young people experience at university. I would order the parents to share the rental cost equally. Father’s share would be $1250.
Order: Father’s post secondary contribution is $12,973.96
Medical, Dental, and Prescription Costs
[154] Subsection 7(1)(c) of the CSG relates to the cost of healthcare expenses that exceed benefits and are necessary in relation to the child’s best interests and reasonable in relation to the means of the families.
[155] In this case, the parents had already anticipated these issues and included them in the original consent order.
[156] I have also reviewed these expenses and the receipts provided and find that:
(1) Each of these expenses is absolutely necessary for K and were recommended by health care professionals
(2) The cost is very reasonable given the means of each family
(3) The costs are recorded and invoices provided to substantiate the cost.
(4) Mother made all efforts to have these costs funded by her insurance benefits to the maximum of the coverage
(5) Because these services were necessary for K’s best interests, mother paid for the excess cost herself.
[157] The cost for these expenses is:
Psychologist $8922.50
Prescriptions $668.30
Chiropractic $855.
Dental $505.
totalling $10,950.80
[158] I order that this be shared equally
Order: Father’s share of these health-related expenses is $5,475.40.
Interest on Arrears:
[159] The final order of March 14, 2002, provided for interest from the date of each default of 7%. For the purpose of this judgment, the retroactive support operates from July 1, 2010. The Bank of Canada prime rate on July 1, 2010 was 2.5%. Accordingly, the interest on arrears is fixed at 2.5%
Conclusion:
Summarizing the above orders:
- Ongoing child support for one child:
Commencing July 1, 2010 $677 a month on $74,620;
Commencing January 1, 2011 $676 a month on $74,371;
Commencing January 1, 2012 $720 a month on $79,373;
Commencing January 1, 2013 $657 a month on $72,037;
Commencing January 1, 2014 $593 a month on $64,125;
Commencing January 1, 2015 $682 a month $75,155;
Commencing January 1, 2016 $756 a month $84,611;
Commencing January 1, 2017 $846 a month $96,108 until December 31, 2017
Commencing September 1, 2018 $812 a month $91,799; until January 31, 2019
Section 7 for daycare terminates September 1, 2008.
Interest on the arrears owing in child support and special expenses is fixed at 2.5%.
Father’s post-secondary contribution is $12,973.96
Father’s share of the health -related expenses is $5,475.40.
A support deduction order for all of the above amounts.
All arrears are owing within 30 days.
Post judgment interest is fixed at 2.5%
Costs:
[160] Counsel for mother may serve cost submissions, maximum 3 pages plus any written offers and bills of costs, by email, within 7 business days of the date of this decision.
[161] Counsel for father may respond by serving submissions by email, maximum of 3 pages, excluding any written offers, and bills of costs, within 7 business days of receiving cost submissions from counsel for mother.
[162] Counsel for mother will file a paper copy of both submissions to the Trial Coordinators’ Office, within 20 business days of the date of this decision.
To: K
I have read a lot about you. I wish I could have met you but I am happy that you were not involved in this case any more than you had to be. Thank you for providing all of your medical records and income tax information. I am very impressed by your intelligence and hard work. You have had a tough time but you have persevered and accomplished a lot.
We have all tried to learn more about mental health challenges, which are pervasive in our society. You have been very wise to seek out and take advantage of services. It is not easy to do. You should be very proud of yourself.
Everything in this case has been recorded with initials only, in order to provide you with some degree of privacy.
Dated at Toronto March 9, 2021.
Signed: Justice D. Paulseth