DATE: July 12, 2022 COURT FILE NO. D40578/20 ONTARIO COURT OF JUSTICE

B E T W E E N:

JEANNE AMAYA ISAYA FERNANDO PIETRAMALA, for the APPLICANT APPLICANT

• and -

JAY AIZY OZO SUNDAY ADEYEMI, for the RESPONDENT RESPONDENT

HEARD: JULY 7, 2022 JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] This trial was about the respondent’s (the father’s) child support obligations for the parties’ 5-year-old daughter (the child).

[2] The applicant (the mother) seeks support retroactive to September 1, 2017 and asks that the father’s annual income be imputed at $90,000 for support purposes. She also asks that the father pay 50% of the child’s piano expenses, starting on August 1, 2021.

[3] The father seeks an order that he pay child support, starting on November 1, 2020, based on an annual income assessed at $32,564. He submits that the piano expense claimed by the mother is not reasonable or necessary and is not eligible as a special or extraordinary expense pursuant to section 7 of the Child Support Guidelines (the guidelines).

[4] The parties agreed to a focused hearing of the support issues. Only the parties testified. Their direct evidence was provided by their affidavits and financial statements filed. They were both cross-examined.

[5] The issues for the court to determine are:

a) When should child support start?

b) At what level should the court assess the father’s income for each year that support is ordered?

c) Is the piano expense claimed by the mother an eligible special and extraordinary expense pursuant to section 7 of the guidelines, and what share of these expenses, if any, should the father pay?

d) What credits should the father receive for support paid?

e) How should any support arrears be paid?

Part Two – Background facts

[6] The mother is 33 years old. The father is 54 years old.

[7] The parties never lived together. They are the parents of the child.

[8] The child has always lived with the mother in Toronto.

[9] The father is married and has two children. His wife and children live in Nigeria.

[10] The father has lived in Kitchener, Ontario since 2019. He travels annually to Nigeria to see his family for several months.

[11] The father has chosen to have limited contact with the child.

[12] The mother is in receipt of public assistance.

[13] The father was working as an Uber driver until March 2022. He said that he is no longer working and is in receipt of public assistance.

[14] The mother issued this application on September 4, 2020.

[15] The father initially did not file an Answer/Claim. He attended court on October 30, 2020 and advised the court that he was not contesting the mother’s parenting claims. The mother was granted final decision-making responsibility for the child and related parenting orders on that date.

[16] The father informed the court on October 30, 2020, that he only wanted to contest the mother’s support claims. The court made a temporary, without prejudice order that he pay the guidelines table amount for one child of $192 each month, starting on November 1, 2020. This was subject to adjustment for both the amount and the start date. The father was granted an extension of time to file his Answer on the support issues.

[17] The father has made all of the child support payments ordered.

[18] On March 2, 2021, the father consented to a financial disclosure order.

[19] On May 14, 2021, the father was granted another extension to file his Answer and financial statement. Costs of $545 were ordered against him for his failure to have done so already.

[20] On July 22, 2021, the focused hearing was organized. The court endorsed that the father was expected to comply with the March 2, 2021 disclosure order and to bring his financial disclosure up to date. The father was cautioned that if he did not provide this financial disclosure, the mother could ask the court to draw an adverse inference against him.

[21] The trial did not proceed as scheduled in December 2021 due to the illness of the father’s counsel.

[22] The trial was scheduled for April 11, 2022 by videoconference. The trial could not proceed as neither the father nor his counsel appeared by video (only audio). The court adjourned the trial to take place in person.

Part Three – The start date for support

3.1 Legal considerations

[23] The court’s authority to make retroactive support orders 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;

[24] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon.

[25] In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for applications to retroactively increase support in paragraph 114 as follows:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors [1] continue to guide this exercise of discretion, as described in Michel v. Graydon. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[26] This framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. Courts have found that this framework should also be applied, with necessary modifications, for an original request for retroactive support. See: M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189.

[27] In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 25. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.

[28] 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. See: D.B.S., par. 12.

[29] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, par. 25.

[30] 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. See: Michel, par. 132.

[31] Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S., par. 97.

[32] In Michel, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty.

[33] We should look at whether the reason for delay 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. See: Michel, par. 121.

[34] 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. See: Michel, par. 113.

[35] Rather, 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. See: Michel, par. 86.

[36] 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. In all cases, hardship may be addressed by the form of payment. See: Michel, par. 124.

3.2 Analysis

[37] The mother deposed that she began asking the father for child support shortly after the child was born in May 2017. The father deposed that the mother has never asked him for child support but she was asking him for money to take care of the child – a distinction without a difference.

[38] The court finds that the mother gave the father effective notice of her claim for child support on June 1, 2017.

[39] Colucci sets out that the presumptive start date of support should not be more than three years before the date of formal notice. Formal notice was given to the father on the date that the application was issued – September 4, 2020. Accordingly, the presumptive start date of support is September 4, 2017 – three years before. The mother is content to use this as the start date of support.

[40] The court must next determine whether it should deviate from the presumptive start date of support.

[41] The court finds that the mother provided understandable reasons for her delay in applying for child support. She hoped to avoid litigation. She said that the father claimed he had no money and could not pay her anything. He intermittently would pay support after she would threaten him with court proceedings.

[42] The mother attended at Legal Aid Ontario in November 2019 to obtain a lawyer to bring a support claim. She informed the father about this. She said that he promised to pay her $200 each month and she decided to hold off on her court application. She said that he did not regularly make the promised payments.

[43] The mother deposed that she obtained a legal aid certificate in March 2020. However, court operations were then suspended due to the pandemic.

[44] The mother’s delay in applying for support was also understandable because the father did not provide her with financial disclosure upon which she could assess how much support he should pay. The father made that point himself when he deposed in his trial affidavit:

The mother could not have been demanding for child support from me as stated in her affidavit when she did not know my income…

[45] The failure to disclose actual income, a fact within the knowledge of the payor, is a failure of a significant obligation and is often at the root cause of a delayed application. See: Michel, supra, par. 116.

[46] The father engaged in blameworthy conduct. The father claims that he made regular contributions to the child’s support. He provided no documentary evidence of this. The court found the mother’s evidence that he made paltry and sporadic contributions to the child’s support until she started this court action to be much more credible.

[47] The father’s conduct was also blameworthy because he did not provide the mother with timely or complete financial disclosure. This continued right up until the trial. The father also misrepresented his financial situation to the mother to avoid his support obligations.

[48] The mother deposed that she and the child have had to live, at times, in shelters and on public assistance. The court finds that the circumstances of the child have been disadvantaged by the father’s failure to pay adequate child support.

[49] A retroactive support claim will likely cause the father some hardship. The court recognizes that he is also supporting two children in Nigeria. However, any hardship to him can be reduced with a reasonable payment order. The court must balance this consideration with the hardship that not making a retroactive support order would cause the mother and the child.

[50] The court finds that there should be no deviation from the presumptive start date of support – September 4, 2017. However, for the ease of administration by the Family Responsibility Office, the court will start support on September 1, 2017.

Part Four – The father’s income

4.1 Positions and evidence of the parties

[51] The mother asked the court to impute the father’s annual income at $90,000. She asked that the court draw an adverse inference against him due to his failure to provide complete financial disclosure.

[52] The mother alleged that the father had told her at the start of their relationship in 2016 that he imported and exported cars between Canada and Nigeria. She claimed that he frequently travels to Nigeria and that his lifestyle demonstrates that he is making much more income than he says.

[53] The mother also submitted that the father is inappropriately deducting personal expenses from his business income on his income tax returns and that his declared net income is not reflective of his actual income.

[54] The mother was much more moderate when asked how much she really believed that the father was earning at trial. She said that she didn’t really know, but she thought it was somewhere between $45,000 to $50,000 annually.

[55] The father said that the notices of assessment he filed accurately reflect his annual income. He did not produce notices of assessment for 2017 and 2021. His notices of assessment for 2018 to 2020 showed the following annual income:

2018 - $7,445 2019 - $13,690 2020 - $32,564

[56] The father deposed that until early in 2019 he operated an auto parts business. He said that he would obtain the auto parts from junkyards in Canada and ship them to Nigeria. In March 2019, he started working as an Uber driver.

[57] The father said that he annually travels to see his family in Nigeria. He said that he usually leaves in November or December and returns to Canada in February or March.

[58] The father said that he earned net income of $12,564 as an Uber driver in 2020 and received CERB of $20,000. The father said that he earned more income as an Uber driver in 2021 than he did in 2020, but that he did not receive any government benefits.

[59] The father testified that he received a $60,000 small business loan from the federal government in April 2021. This money is gone. The father said that he spent it to repay loans and on legal fees.

[60] The father advised the court that he lost his driver’s licence in March 2022 due to having been charged with impaired driving. He testified that he is no longer working. [2] He told the court that he is now in receipt of public assistance.

[61] The father submitted that he is willing to have his income imputed at $32,564 (his 2020 income) for the purpose of the support calculation, starting in November 2020, even though he isn’t earning this income.

4.2 Legal considerations for imputing income

[62] Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.

[63] The jurisprudence for imputation of income sets out the following:

a) Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. C.A.).

b) The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:

(i) Is the party intentionally under-employed or unemployed?

(ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?

(iii) If not, what income is appropriately imputed?

c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

d) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

e) As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, [2000] O.J. No. 453, (Ont. Fam. Ct.).

f) The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

g) A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O’Connor, [2006] O.J. No. 1660, (Ont. Fam. Ct.).

h) The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002), 31 R.F.L. 5th 88 (SCJ). This includes the obligation to present information in a user-friendly fashion.

i) The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, [2009] O.J. No. 2140, (Ont. S.C.). The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v. Carriere, 2016 ONSC 4719.

j) Where the under-employment or unemployment is the result of one's own actions (an event over which the payor had some control) or misconduct, the support obligations might not be reduced or cancelled. See: Luckey v. Luckey, [1996] O.J. No. 1960 (SCJ); Maurucci v. Maurucci); Sherwood v. Sherwood (2006), O.J. No. 4860 (SCJ). However, the imputation of income to a payor who is earning less income due to their own misconduct or reckless behaviour is not automatic. It remains an exercise of discretion for the court. See: Sheridan v. Cupido, 2018 ONSC 5817.

k) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

4.3 The inadequate financial disclosure of the father

[64] The analysis of the father’s annual income was made very challenging due to his incomplete financial disclosure. The father only partially complied with court orders to provide this disclosure. Accordingly, it is appropriate to draw an adverse inference against him.

[65] The father only provided one income tax return – his 2020 income tax return. The failure of the father to provide complete income tax returns for 2017 to 2019 was important because he was self-employed. The father provided no evidence about his revenues and expenses for these years. [3]

[66] The father did not provide a notice of assessment or any other disclosure of his 2017 income, even though he was aware that his 2017 income was in issue.

[67] The father only filed one financial statement, sworn on October 4, 2021, despite his obligation to provide an updated financial statement for trial pursuant to the Family Law Rules.

[68] The father said that he has not filed his 2021 income tax return. He did not provide a satisfactory reason for not doing this. The father provided some monthly Uber statements for 2021, but without an income tax return, the court cannot conclude that this disclosure was complete.

[69] The father provided no documentary evidence of his 2022 income. He provided no evidence of job searches since his driver’s licence was suspended in March 2022.

[70] The father provided no documentation supporting how he obtained his $60,000 government loan in April 2021. It would have been interesting to see the annual income he represented that he was earning to obtain the loan. He did not provide any accounting of where these funds went. He provided no evidence of debts owing that had to be paid.

[71] The father disregarded the mother’s request to provide copies of his Nigerian and Canadian passports to determine how frequently he has been traveling to Nigeria. The mother claims that he travels to Nigeria several times each year. The father says that he travels to Nigeria only once each year.

[72] The father was told many times by the court to provide complete financial disclosure. His failure to do so adversely affected his credibility.

4.4 Assessment of the father’s income

[73] The court finds the father’s self-reported income to be entirely unreliable.

[74] However, this does not mean that the court can pick any income number out of the air to impute to the father, such as the $90,000 suggested by the mother. There must be an evidentiary basis to the order.

[75] The mother provided no evidence that the father imports or exports cars or that he continues to operate the auto parts business. She was only able to speculate that this was the case. The father provided bank account statements that did not reveal any business activity of this nature. The court will not impute income to the father on this basis.

[76] The court has the father’s 2020 income tax return and six monthly Uber statements from 2021 to conduct its income analysis.

[77] The father’s gross income from Uber in 2020 was $57,379.43. The father aggressively deducted expenses from his gross income in his income tax return. He deducted professional fees of $5,500. He testified that this was for legal fees in this case. This is not an appropriate deduction. He claimed utility expenses of $1,440. He said these were for the lights at his home. This expense is unrelated to his business and is not a proper deduction. The father also claimed expenses for meals and entertainment that should not be deducted from his income for support purposes.

[78] The father was also overly aggressive in deducting capital cost allowance for his vehicle. He deducted almost 30% of its value in 2020. The court finds that a 15% deduction is appropriate when conducting the support analysis.

[79] The court will add back the following amounts that were deducted from the father’s business income in 2020:

Meals and entertainment - $878 Professional fees - $5,500 Utilities - $1,440 Capital cost allowance add-back - $4,175 Total add-backs - $11,993

[80] The court finds that the father’s business income in 2020 should be assessed at $24,557 – being the $12,564 declared plus $11,993 add-backs. Together with the CERB income, this comes to $44,557.

[81] However, the income analysis does not end there. It is appropriate in these circumstances to gross-up the father’s income, as he is declaring and paying tax on substantially less income than he was actually earning. This is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855 (Ont. S.C.).

[82] A software analysis shows that the gross-up increases the father’s 2020 income to $47,886. [4] This is the income that the court will impute to the father in 2020 for support purposes.

[83] In the absence of meaningful financial disclosure, the court finds that the father was likely earning net business income of between $32,000 to $35,000 each year from 2017 to 2019, either from his auto parts business or as an Uber driver. This is comparable to the business income that he earned in 2020. [5] It is also consistent with the lifestyle that the father was maintaining, as reflected in his financial statement. The father was able to afford annual trips to Nigeria. He also deposed that he has been sending $300 each month to support his children in Nigeria. [6]

[84] The assessment of the father’s income should be lower for 2017 to 2019 than for 2020 because he was not receiving CERB in those years. However, his annual business income, (assessed by the court for those years of between $32,000 to $35,000), should be grossed up, as the father declared much lower income on his income tax returns. [7]

[85] Based on the over-aggressive deduction of his 2020 business expenses, the court draws the inference that the father similarly deducted expenses in this manner in his 2017 to 2019 income tax returns. A software analysis indicates that his imputed income after gross-up should be in the range of $40,000. [8] This is the annual income figure that the court will use to assess the father’s support obligations for 2017 to 2019.

[86] The father provided monthly Uber statements for 2021 showing his gross revenue. They show that for six months worked in 2021 he grossed income of about $31,000. This appears to be consistent with the gross income he earned in 2020.

[87] However, it appears that the father did very little work in July 2021. The father also said that he was in Nigeria for three months in 2021. He did not provide a satisfactory explanation for why he wasn’t driving during the other three months.

[88] If the father only earned income in these six months in 2021, the court finds that he was intentionally under-employed without a reasonable excuse. The father testified that he does not work when he goes to Nigeria each year. He did not offer a satisfactory explanation as to why. He has an obligation to earn income to the best of his ability. He has chosen not to do so. It is appropriate to impute income to him.

[89] The court will impute income to the father of $40,000 for 2021, recognizing that he was no longer receiving the CERB payments. This is consistent with the income imputed to him from 2017 to 2019 and the court’s findings about his lifestyle.

[90] The analysis changes for 2022. The father has not been driving Uber since March 2022. While on the one hand, the court can apply the case law that says that support should not be reduced because a support payor has lost his job due to his own fault, that is not necessarily the case here. The father has been charged with impaired driving, but has not been convicted of this offence. This is yet to be determined. The court has the discretion to determine what imputation of income to the father is fair in the circumstances.

[91] The father is in receipt of public assistance. His proposal to impute his annual income for 2022 and on an ongoing basis at $32,564 is fair.

Part Five – The child’s piano expenses

[92] The mother asks that the father pay 50% of the child’s piano expenses. These expenses started in August 2021. The mother is paying $160 to $190 each month for this expense.

[93] The father’s position is that this expense is not reasonable or necessary given the parties’ incomes.

[94] The court finds that the piano expense is an extraordinary extra-curricular activity expense as defined in subsection 7 (1.1) of the guidelines. It is more than the mother can reasonably cover given her income and the table amount of support.

[95] The court agrees with the mother that the expense is both reasonable and necessary for the child – a requirement for an extra-ordinary extracurricular expense to be eligible under subsection 7 (1) of the guidelines. The mother described how the child is showing talent at playing the piano. It is an activity that the child enjoys and derives a sense of accomplishment from. It helps, the mother says, with the child’s focus. It is her only extra-curricular activity at this time. The court finds that this activity is necessary for the child’s development.

[96] The court also finds that the expense is reasonable. The mother was working when she started this activity and recently went back on public assistance. The mother is also being reasonable in asking that the father only pay 50% of this expense and not his proportionate share of the expense, which is the guiding principle under subsection 7 (2) of the guidelines.

Part Six – Support credits and calculation of support arrears

[97] The court preferred the mother’s evidence over the father’s evidence on the issue of how much support the father paid to her prior to the temporary support order being made on October 30, 2020.

[98] The father was not a credible witness. He did not accurately represent his income to the mother. He failed to provide timely or complete financial disclosure. He failed to provide his application for the government loan and dissipated that loan during this court proceeding instead of applying any of it to child support.

[99] The mother deposed that the father gave her money or bought the child gifts totaling approximately $1,500 up until the end of October 2020. She acknowledged that the father has paid the support ordered since then. This results in a credit of $4,031 ($192 x 21 months). Accordingly, the father will be credited with support payments made of $5,532 ($1,500 plus $4,032) since September 1, 2017.

[100] Based on an imputed annual income of $40,000, the monthly guidelines table amount for one child from September 2017 to the end of 2019 is $359 each month. [9] This is a 28-month period and totals $10,052.

[101] Based on an imputed annual income of $47,866 for 2020, the monthly guidelines table amount for one child is $444, for a total 2020 amount of $5,328.

[102] Based on an imputed annual income of $40,000 for 2021, the monthly guidelines table amount for one child is again $359 each month, for a 2021 total of $4,308.

[103] Based on an annual imputed income of $32,564 for 2022, the monthly guidelines table amount for one child is $278 each month. A total of $1,946 has accrued to date during the 7 months of 2022.

[104] The court finds that the child’s piano expenses have averaged $175 each month since August 2021. It has accrued for 12 months for a total of $2,100. The father’s 50% share accrued to date will be fixed at $1,050.

[105] The total support accrued to date is $22,684. The father is to be credited with $5,532 paid, leaving a balance owing of $17,152.

[106] The court will give the father the opportunity to pay these arrears over seven years. The court has considered his other support obligations in ordering such a long payment schedule. This comes to $205 each month. The court finds that the father can afford this. However, if the father is more than 30 days late in making any ongoing or arrears payment, then the entire amount of arrears then owing shall immediately become due and payable.

Part Seven – Conclusion

[107] A final order shall go on the following terms:

a) Based on an imputed annual income of $40,000, the father shall pay the mother monthly child support of $359 each month, starting on September 1, 2017. This is the guidelines table amount at this income.

b) Based on an imputed annual income of $47,886, the father shall pay the mother monthly child support of $444 each month, starting on January 1, 2020. This is the guidelines table amount at this income.

c) Based on an imputed annual income of $40,000, the father shall pay the mother monthly child support of $359 each month, starting on January 1, 2021. This is the guidelines table amount at this income.

d) Based on an imputed annual income of $32,564, the father shall pay the mother monthly child support of $359 each month, starting on January 1, 2022. This is the guidelines table amount at this income.

e) The father shall pay the mother the sum of $1,050 for his share of the child’s piano expenses accumulated to date.

f) The father shall pay the mother 50% of the child’s ongoing piano expenses, starting on August 1, 2022, within 30 days of the mother providing him with receipts.

g) The father shall be credited with support payments made to date of $5,532.

h) Child support arrears are fixed at $17,152 as of this date.

i) The father may pay the arrears at the rate of $205 each month. However, if he is more than 30 days late in making any ongoing or arrears support payment the entire amount then owing shall immediately become due and payable.

j) A support deduction order shall issue.

k) The Family Responsibility Office is requested to adjust its records in accordance with this order.

l) Nothing in this order precludes the Family Responsibility Office from collecting arrears from any government source, such as income tax or HST/GST refunds, or from any lottery or prize winnings.

m) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year.

n) The father shall immediately notify the mother when he obtains employment, the name and address of his employer and provide her with his first three pay cheques from the employer within 14 days of receipt.

[108] If either party seeks their costs, they shall serve and file written submissions by July 26, 2022. The other party will then have until August 9, 2022 to serve and file their written response (not their own request for costs). The submissions are not to exceed three pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinator’s office.

[109] The court thanks counsel for their presentation of this case.

Released: July 12, 2022

Justice Stanley B. Sherr

Footnotes

[1] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
2. The conduct of the payor parent.
3. The circumstances of the child.
4. The hardship that the retroactive award may entail.

[2] This evidence only came out after the court questioned the father about his current income.

[3] For 2019, the father only filed an undated letter that said he had conducted over 3,000 trips that year as an Uber driver. The court has no evidence to determine how much the father would earn from this many trips.

[4] The software analysis will be attached to the decision.

[5] The court has taken into account that the 2020 business income assessed at $28,111 was not accumulated over a full year. This was understandable in 2020 because of disruptions caused by the pandemic.

[6] The father provided no documentary evidence supporting this.

[7] This income is set out in paragraph 55 above. The father did not file a 2017 income tax return.

[8] The court took the income that the father declared in his income tax returns for 2018 and 2019, added back income to bring this annual income up to between $32,000 and $35,000, and then grossed up the undeclared income to come to approximately $40,000. The final imputed number falls within a range – it is not a precise calculation.

[9] Technically, it was $1 less in September and October 2017 prior to the tables being changed. This is inconsequential.