COURT FILE NO. D31535/19 DATE: October 27, 2022
ONTARIO COURT OF JUSTICE
B E T W E E N:
NNENNA MPAMUGO
APPLICANT
- and -
RANDY NYECHE-WOLUCHOR
RESPONDENT
COUNSEL: Pamila Bhardwaj, for the Applicant Randy Nyeche-Woluchor, Acting in Person
HEARD: October 24-25, 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’ 11-year-old son (the child).
[2] The applicant (the mother) seeks child support from the father retroactive to November 1, 2016, including payment towards the child’s special and extraordinary expenses (special expenses) pursuant to section 7 of the Child Support Guidelines (the guidelines). The mother seeks to impute income of $25,000 to the father each year on top of the annual income reflected in his notices of assessment.
[3] The father asks the court to order prospective child support, starting on November 1, 2022, based on an annual income of $27,365. He opposes the mother’s claims for retroactive support and a contribution to the child’s special expenses.
[4] This trial was organized as a focused hearing by the case management judge, Justice Carolyn Jones. The parties were required to serve and file affidavits for their direct evidence. They were also given timelines to serve and file the documents that they intended to rely upon at trial.
[5] The mother complied with these trial directions. She filed her trial affidavit, the affidavit of a friend and a document brief. The father did not comply with the trial directions. He did not file a trial affidavit or any documents in advance of the trial.
[6] The father was represented by counsel until July 7, 2022. He was self-represented at trial. The court was mindful of its obligation to provide reasonable assistance to a self-represented litigant. See: Pintea v. Johns, 2017 SCC 23.
[7] The court permitted the father to orally present his direct evidence.
[8] On the first day of trial, the father claimed that he had documentation at home that would support his claims. Even though his direct evidence had been completed, and he had failed to disclose these documents in advance of the trial, the court gave him permission to bring these documents the next day. The court instructed him to make copies of any document that he wished to present for the mother’s counsel.
[9] The father did not bring any documents to court on the second day of trial and the trial proceeded.
[10] The parties cross-examined each other. The father chose not to cross-examine the mother’s witness.
[11] The issues for the court to determine are:
a) When should the order for child support start? In determining this issue, the court also needs to determine when the parties separated. b) What is the father’s income for support purposes in the years that child support will be ordered? Should income be imputed to him in any of those years? c) What amount should the father contribute toward’s the child’s special expenses? d) How should any support arrears be paid?
Part Two – Background facts
[12] The mother is 48 years old. The father is 46 years old.
[13] The parties were born in Nigeria. They are now Canadian citizens.
[14] The parties married in 2009. They disagree on their day of separation. The mother says that they separated in 2013. The father says that they separated in 2019.
[15] The child has lived with the mother since the parties separated.
[16] The mother has a 14-year-old child from another relationship who lives with her. She said that she receives child support of just over $200 each month from that child’s father.
[17] The father has a 17-year-old child from another relationship. He stated that there is a court order from 2008 requiring him to pay the child’s mother about $300 each month for child support.
[18] The mother used to work as an educational assistant with special needs children. However, she is now on public assistance due to medical conditions that prevent her from working. She has been unable to work since November 2020.
[19] The father works as an educational assistant with the Toronto District School Board (TDSB). He supplements this income as ride-share driver. He has driven for Uber and for Lyft.
[20] The mother issued this application on November 15, 2019. She sought orders for decision-making responsibility and child support.
[21] The case was administratively delayed due to the pandemic.
[22] On November 5, 2020, Justice Jones ordered the father to pay the mother temporary child support of $294 each month, starting on November 1, 2020. This was based on the income set out in his notice of assessment. She also ordered the father to produce financial disclosure to the mother.
[23] On February 10, 2021, the father amended his Answer/Claim to include a claim for spousal support against the mother.
[24] On January 19, 2022, the parties resolved the parenting issues. The child has his primary residence with the mother, and she has final decision-making responsibility for the child. A specified parenting time schedule for the father was agreed to.
[25] On April 21, 2022, Justice Jones ordered the father to provide further financial disclosure to the mother.
[26] At the outset of the trial, the father filed a Form 12 Notice of Withdrawal of his claim for spousal support.
Part Three – Credibility and reliability
[27] The court had some concerns about the reliability of the mother’s evidence. She minimized the extent of her relationship with the father from 2013 to 2019 in her trial affidavit. She did not mention that the father had slept over with her at her home on alternate Wednesdays and Saturdays between 2013 and 2018. She did not mention that she had traveled with the father and the child as a family to Nigeria in 2015, or that they had vacationed in Niagara Falls in 2017.
[28] To her credit, the mother candidly revealed this history when questioned by the court. She also conceded that the reason she had not sought child support from the father prior to September 2019 was because she had hoped that they would reconcile. It was only when she learned that the father was involved in another relationship with a woman in Nigeria during the summer of 2019 that she accepted that their relationship was over.
[29] However, despite these concerns, most of the mother’s evidence was corroborated by independent documentation and her witness. She presented her evidence in an organized, coherent and credible manner.
[30] Any concerns about the reliability of the mother’s evidence paled in comparison to the court’s concerns about the credibility and reliability of the father’s evidence.
[31] The father was not a credible or a reliable witness for the following reasons:
a) His evidence was often contradicted by the documentary evidence filed. b) His evidence was often inconsistent or illogical. c) He attempted to evade answering difficult questions and deflected blame for his inconsistent evidence. d) The documentation he provided was incomplete and sometimes confusing. He only partially complied with disclosure orders. He was unable to explain inconsistent evidence. e) He failed to reveal bank accounts in his financial statements. f) He did not disclose all sources of income on his income tax returns. g) He was not honest about his financial affairs. h) On the first day of trial, he claimed to have documents at home proving that he had supported the child and lived with the mother after 2013. He was given another chance to provide those documents to the court. He failed to do so. The court draws an adverse inference against him arising from this. i) He denied that he had a ceremonial marriage to another woman in Nigeria in 2021. The mother produced photos and a video clip of the ceremonial wedding that had been sent to her by one of the father’s family members in 2021 and identified the father as the groom in the photographs. The father denied knowing anyone in the photographs. However, it was evident that he was the groom beside the bride in those photographs and not telling the truth.
[32] Where their evidence conflicted, the court preferred the mother’s evidence to the father’s evidence.
Part Four – The parties’ relationship
[33] The mother claimed that she separated from the father in March 2013. She said that the Children’s Aid Society became involved with the family when her older child made complaints about the father. She said that the father had insisted that her child be sent to live with her father. The mother refused and the father moved out into his own apartment on Jane Street in Toronto.
[34] The mother said that she continued having a relationship with the father. He came to her home on alternate Saturdays to see her and the child and stayed overnight. He also came on alternate Wednesday evenings and stayed overnight. She said that this stopped by the end of 2018. She said that they went together to Nigeria in 2015 and to Niagara Falls in 2017 with the child.
[35] The mother said that she did not go on any trips with the father or to any family activities with him after the trip to Niagara Falls in 2017.
[36] The mother deposed that she hoped to reconcile with the father. She said that she received considerable family pressure to do so, particularly from his family in Nigeria. She said that she would be shamed in her community if she was divorced twice.
[37] The mother said that she asked the father for support shortly after their separation and constantly asked him for child support in the following years. She said the father always replied that he had no money to give her.
[38] The mother deposed that she solely financially supported the child.
[39] The mother testified that the father asked her for a $5,000 loan in 2016 to buy land in Nigeria. He told her that the land would be registered in both of their names. She said that she gave him $5,000, but he purchased the property in his name alone.
[40] The mother’s evidence regarding her separation from the father in 2013 was corroborated by her friend. This witness said that she provided childcare for the mother when she worked. The father did not challenge this evidence.
[41] The father claimed that the parties did not separate until September 2019. He said that he returned from a trip to Nigeria and the mother had locked him out of the home. The father did not explain why the mother might have done this.
[42] The father kept changing his evidence about the Jane Street address. He claimed that he never lived at the Jane Street address and that the mother had put his name on this address to obtain extra government benefits. When it was pointed out that he used this address on the income tax returns he filed, he changed his evidence and said that he had no choice but to go along with the mother’s scheme. He also blamed his accountant for putting this wrong address on his income tax returns.
[43] At best, the father’s evidence on this point was that he was complicit in the mother defrauding the government (the court is not finding that the mother did this).
[44] The father could not explain why the Toronto District School Board was sending correspondence about his wages to the Jane Street address.
[45] The father claimed that “everyone knows” that he never lived at the Jane Street address. However, despite knowing that this was an issue in dispute, he brought no one to court to corroborate his version of the facts.
[46] The father claimed that he lived with and fully supported the mother and the child from 2013 to 2019. He claimed to be the breadwinner. He provided no evidence of this, despite having been ordered to produce such evidence in advance of trial and having been given an extra day at trial to provide it.
[47] The court finds that if the father contributed anything to the child’s support after March 2013, it was inconsequential.
[48] The court finds that the father separated in March 2013 when he moved into the Jane Street apartment. It also finds that the parties maintained an amicable relationship. This relationship often included sexual relations that continued until the end of 2018.
Part Five – The start date for support
5.1 Legal considerations
[49] 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;
[50] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon.
[51] 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.
[52] 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.
[53] 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.
[54] 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.
[55] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, par. 25.
[56] Retroactive child support is a debt. There is no reason why it should not be awarded unless there are strong reasons not to do so. See: Michel, par. 132.
[57] Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S., par. 97.
[58] 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.
[59] In considering delay, courts 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.
[60] 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.
[61] 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.
[62] Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.
[63] Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., par. 106.
[64] 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. See: Michel, par. 119.
[65] 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. See: Michel, par. 34.
[66] 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. See: Michel, par. 120.
[67] 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.
[68] The jurisprudence for retroactive support also applies to retroactive claims for special expenses. See: Smith v. Selig, 2008 NSCA 54, 56 R.F.L. (6th) 8 (NSCA); Hetherington v. Tapping, 2007 BCSC 209, Surerus-Mills v. Mills.
[69] This court was recently faced with a similar scenario in Lewis v. Willis, 2022 ONCJ 421. The court considered whether it should deviate from the presumptive start date because the parties continued a romantic relationship for one year after the child was born (they never cohabited). The court decided not to deviate from the presumptive start date (the date the child was born) because of the extent of the father’s blameworthy conduct and because he had been deceitful with the mother – he was married and lived with his wife and child without the mother’s knowledge while carrying on a relationship with her that she thought was exclusive. This false belief explained, to some extent, the mother’s delay in seeking support from the father.
5.2 Analysis
[70] The mother deposed that she began asking the father for child support shortly after they separated in March 2013 and frequently asked him for support afterwards. The court accepts the mother’s evidence.
[71] The court finds that the mother gave the father effective notice of her claim for child support in March 2013.
[72] 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 when he was served with the application in December 2019 (the specific date was not provided). The court finds that the presumptive start date of support is January 1, 2017. This is the first day of the first month following the date three years back from the date of formal notice.
[73] The court must next determine whether it should deviate from the presumptive start date of support.
[74] The mother is not asking to deviate from the presumptive start date to an earlier start date. She explained that she did not want to create an onerous financial burden on the father that she was unlikely to collect.
[75] The mother’s explanation for her delay in coming to court was only partially understandable.
[76] The mother deposed in her trial affidavit that she delayed in coming to court because of family pressure and community expectations. She also did not want to dissuade the father from visiting the child.
[77] However, the main reason that the mother delayed in coming to court was because she hoped to reconcile with him. She acknowledged that going to court and claiming child support would end that hope.
[78] Once the mother learned about the father’s relationship with another woman in Nigeria in 2019, she quickly decided to come to court. At that point, family pressure, community expectations and her desire for the father to see the child were no longer compelling factors preventing her from starting a court action.
[79] The impact of the parties’ relationship on the delay factor might have been a more compelling consideration if the mother had sought a start date for support prior to the presumptive start date. However, in determining whether the court should decrease the period of retroactivity from the presumptive start date this consideration was far outweighed in this case by the other D.B.S. factors.
[80] The father has engaged in significant blameworthy conduct. He did not pay the mother child support after 2013, despite having the ability to do so. He did not pay any child support until 2021, and only after being ordered to do so. He is in arrears of support under that order.
[81] The father has consistently misrepresented his income to the mother. He claimed that he had little money to pay child support. That was not true. He convinced the mother to give him $5,000 to buy land in Nigeria and did not put the property in her name jointly with him, as promised. He did not pay this money back to her. He did not provide timely, complete or accurate financial disclosure to the mother so that she could properly assess his income once she started this case. He has misrepresented his income to the court.
[82] The extent of the father’s blameworthy conduct in this case is comparable to the father’s conduct in Willis, supra. He took financial advantage of the mother’s desire to reconcile with him.
[83] The circumstances of the child have been disadvantaged due to the father’s failure to pay support. The mother has lived a modest lifestyle. She cut back on what she spent on the child. The mother has been unable to afford better accommodation for the child. Unlike the father, she is unable to travel frequently to Nigeria with the child. She has assumed the support obligation for the child and has been financially disadvantaged.
[84] The father has been financially advantaged due to his failure to pay support. He travels annually to Nigeria for months at a time. He had a ceremonial marriage in Nigeria in 2021. The court agrees with the mother, based on the photographs filed, that this was likely an expensive wedding. The court accepts the mother’s evidence that the father bought land in Nigeria with the $5,000 she gave him. The father also had $5,000 of investment income in his 2021 income tax return.
[85] The father claimed in his most recent financial statement that he spends close to $4,000 monthly, not including source deductions.
[86] A retroactive support order might cause the father some hardship. He has another child to support. However, not ordering retroactive support would cause the mother and the child hardship.
[87] The court will not deviate from the presumptive start date of support. Support shall start on January 1, 2017.
Part Six – Income
6.1 Legal considerations for imputing income
[88] Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.
[89] 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. 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. 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. See: 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. f) 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. g) 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. h) 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; Maimone v. Maimone. 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. See: Charron v. Carriere, 2016 ONSC 4719. i) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken; Jonas v. Jonas; Price v. Reid, 2013 ONCJ 373.
6.2 The parties’ positions about the father’s income
[90] The mother claims that the father is earning more income than he disclosed in his income tax returns. She says that he is not disclosing all of his business income and that he is unreasonably deducting expenses from the business income that he is declaring. She says that he travels to Nigeria each year and is operating a printing business there. She believes that he built a home on the land he purchased and that his Nigerian wife resides there.
[91] The mother submits, in the alternative, that if the father is not earning income in Nigeria, he is deliberately underemployed because he is traveling to Nigeria for a few months each year and could be working as a Lyft driver during these months in Canada.
[92] The mother asks the court to add $25,000 each year to the father’s declared income for the purpose of the support analysis.
[93] The father testified that his notices of assessment reflect his actual income. He denies earning additional unreported income or improperly deducting business expenses. He also denies that he is deliberately underemployed. His notices of assessment show the following annual income:
- 2017: $36,092
- 2018: $33,458
- 2019: $34,186
- 2020: $34,373
- 2021: $40,961
[94] The father testified that he works 34.5 hours each week for the TDSB and is paid at $30.14 per hour. This is for 10 months each year. The father said that he also receives EI during the summer. He provided no documentation setting out how much he received. He has continued to be a Lyft driver in 2022.
6.3 Analysis
6.3.1 Preliminary findings
[95] The analysis of the father’s income was made difficult by his failure to provide complete, timely and accurate financial disclosure. An adverse inference is drawn against him for his failure to do so.
[96] Some of the father’s tax returns did not include the attachments, including his Statements of Business or Professional Activities. These statements are critical to assess the legitimacy of the business expenses the father deducted from his business income.
[97] At times, it was apparent that the father did not properly disclose his income in his income tax returns. Statements from Uber and Lyft indicated that he earned more income than he reported in some years.
[98] The father delayed in revealing his drive-sharing income to the mother. She had to learn this on her own. For instance, in his 2017 income tax return he did not report earning any business income. However, the mother obtained his Uber tax summary for that year. It showed that the father earned gross income of over $31,000 in 2017.
[99] There were also times that the assessed income in the father’s notices of assessment was much different than the income declared in his income tax returns. The father was unable to explain these discrepancies.
[100] The father represented that he had one bank statement in his financial statements filed in this case. It turned out that he had three bank accounts. He also did not provide his complete bank statements to the mother. This made it difficult for her to verify his actual income.
[101] The father denied that he had any bank accounts in Nigeria. The court does not believe him.
[102] The father aggressively deducted expenses from his Lyft income in his income tax returns. He has declared either minimal income or applied a business loss against his employment income every year. The father claimed that he drives for Lyft between 10-17 hours each week (the mother claims that he drives many more hours). It is not believable that the father would have driven Lyft or Uber for the past six years if he was really losing money.
[103] The court finds that the father has likely been earning between $10-15,000 annually, after expenses, from driving Lyft or Uber, to make it worth his while. The exception is for 2020 and 2021, due to the pandemic.
[104] This level of imputation is consistent with the father’s lifestyle. He travels annually to Nigeria for several months each year and is earning sufficient income to cover his declared annual expenses of $48,000.
[105] Except for 2020 and 2021, the court will impute additional income of $12,500 to the father’s income for the purpose of the support calculation.
6.3.2 2017 income
[106] The father did not produce his 2017 income tax return. His notice of assessment and T4 show that he had employment income of $36,092.
[107] The father did not report his Uber income in his income tax return. The mother obtained his year-end statement from Uber. It shows that he earned gross income of just over $31,000 and had expenses of about $7,500, for a net income of $23,500. He had legitimate vehicle expenses that he could have deducted if he had reported this income.
[108] The court finds that in 2017 the father earned $36,092 of employment income, plus $12,500 of self-employment income for a total of $48,592.
[109] However, the support analysis does not stop there. It is appropriate in these circumstances to gross up his income, as he is declaring and paying tax on substantially less income than he is 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.
[110] A software analysis (these calculations will be attached to this decision) shows that the father’s 2017 income, after grossing up his income, is $53,153.
[111] The guidelines table amount at this income was $490 each month.
[112] The father paid no child support in 2017. His support arrears for 2017 are $5,880 ($490 x 12 months).
6.3.3 2018 income
[113] In his 2018 income tax return, the father declared employment income of $31,089.25, gross business income of $22,114.67 and net business income of $2,369.30 for a total income of $33,458. It appears that the father must have driven for both Uber and Lyft this year since he only provided proof of gross business income of $13,147 from Uber.
[114] The father did not provide the schedule of Business or Professional Affairs in this tax return.
[115] The court finds that the father earned $31,089 employment income, plus $12,500 self-employment income in 2018, for a total income of $43,589.
[116] The software analysis shows that the father’s 2018 income, after grossing up his income, is $46,419.
[117] The guidelines table amount at this income was $431 each month.
[118] The father paid no child support in 2018. His support arrears for 2018 are $5,172 ($431 x 12 months).
6.3.4 2019 income
[119] In his 2019 tax return, the father declared employment income of $34,774, gross business income of $18,841.62 and a net business income loss of $588.41, for a total income of $34,186.38.
[120] A pay stub from the TDSB shows that the father was being paid $24.94 per hour.
[121] The father did not provide his Lyft or Uber statements for this year.
[122] The court finds that the father earned $34,774 of employment income plus $12,500 self-employment income in 2019 for a total income of $44,274.
[123] The father only declared income of $34,186 for tax purposes, so his income needs to be grossed up. The software analysis shows that the father’s 2019 income after grossing up his income is $47,947.
[124] The guidelines table amount at this income was $440 each month.
[125] The father paid no child support in 2019. His support arrears for 2019 are $5,280 ($440 x 12 months).
6.3.5 2020 income
[126] The father’s 2020 income tax return shows employment income of $21,149.77. It also shows gross business income of $1,768 and a net business income loss of $2,821. This made little sense as the father’s Lyft statements showed net business income of $18,122 for this year.
[127] The father declared income of $18,328.77 on his tax return.
[128] The father did not provide the schedule of Business or Professional Affairs in this tax return.
[129] The father attached a 2020 pay stub from the TDSB that indicated that his hourly wage had increased to $27.13 per hour.
[130] The father’s notice of assessment bore no relationship to his income tax return. It indicated that his 2020 income was assessed at $34,373. The father could not explain why and blamed his accountant.
[131] The court will only add $3,000 to the father’s assessed income for 2020. This represents self-employment income for the first quarter that year. The court would have added much more income if the income he declared hadn’t already been substantially readjusted in his notice of assessment. The court accepts that the father’s ability to earn income was impaired by the pandemic in 2020.
[132] This will result in a minor gross-up of the father’s income. The software analysis shows that this brings the father’s 2020 income to $38,840.
[133] The guidelines table amount at this income was $345 each month.
[134] According to the records of the Family Responsibility Office, the father paid no child support in 2020. His support arrears for 2020 are $4,140 ($345 x 12 months).
6.3.6 2021 income
[135] The father’s 2021 income tax return showed employment income of $30,324 and interest income of $4,505.60. It also showed gross business income of $8,358 and a net business income loss of $7,465. This resulted in total income of $27,366.
[136] When questioned about the investment income, the father claimed that it was not his money. He said that a friend had asked him to invest the money for him. This was not believable. This explanation was not previously disclosed. He provided no evidence to support this. The father was in the middle of child support litigation. It made little sense for him to artificially inflate his income in these circumstances and expect the court to accept that it was for someone else.
[137] The investment income corroborates the mother’s position that the father has accumulated capital due to his failure to pay support.
[138] The father traveled to Nigeria for three months in 2021. The length of his stay was partly due to his father’s death earlier in the year. However, the main reason appears to be his marriage.
[139] The father’s 2021 tax return also indicates that he deducted expenses for a Hyundai Tucson vehicle. This vehicle had not been mentioned on his financial statements. The mother claimed that the father had shipped this vehicle to Nigeria and that he was driving a Hyundai Elantra in Canada. The father said that his accountant was wrong when he filed his income tax return and that he does not own a Tucson vehicle. Given his credibility issues, the court does not accept the father’s explanation.
[140] Again, the father’s notice of assessment reflected a much different income than he declared in his tax return. His income was assessed at $40,961. The father could not explain why.
[141] The court finds that the father earned employment income of $30,325, investment income of $4,505 and earned or could have earned $10,000 from being a Lyft driver in 2021 (the court is imputing less Lyft income in 2021 due to the pandemic). This comes to an income of $44,830.
[142] This will result in a minor gross-up of the father’s income. The software analysis shows that this brings the father’s 2021 income to $45,809.
[143] The guidelines table amount at this income was $425 each month.
[144] According to the records of the Family Responsibility Office, the father paid child support of $2,459.08 in 2020. His support arrears for 2021 are $2,640.92 ($425 x 12 months - $2,458.08).
6.3.7 2022 income
[145] The father has now become a full-time, as opposed to a casual, employee for the TDSB. He earns $30.14 per hour. The father said that he works 34.5 hours each week, for 10 months each year. He now has an extended health plan available to him through work.
[146] Based on this information, the father’s employment income from the TDSB in 2022 projects to $41,600 (40 weeks at $1,040 per week). The father also testified that he received EI of about $1,000 in the summer (he did not provide any statements). The father is not working longer hours for the TDSB, he is just earning more money. He is still driving for Lyft. A further $12,500 will be imputed to him for 2022. The court will not gross up this income for 2022. However, this could be grossed up on a subsequent motion to change if the father does not declare this net income on his 2022 income tax return.
[147] The court finds that the father’s 2022 income is $55,100 for support purposes.
[148] The guidelines table amount at this income is $508 each month.
[149] According to the records of the Family Responsibility Office, the father has paid child support of $2,059.90 in 2022. His support arrears for 2022 to date are $3,020.10 ($508 x 10 months - $2,059.90).
Part Seven – Special expenses
[150] The father did not dispute that the expenses claimed by the mother qualified as special expenses pursuant to section 7 of the guidelines. He said that he could not afford to contribute to them.
[151] The court finds that the expenses claimed by the mother qualify as special expenses. The expenses are all reasonable and necessary. She provided receipts. The expenses are as follows:
- 2018
- Dental: $528.25
- 2019
- Dental: $68.12
- Medical: $233
- Kumon: $380
- 2020
- Medical and Dental: $245.05
- 2021
- Medical: $208.58
- Total: $1,662.98
[152] The father did not dispute that the mother cannot work at this time due to a medical disability. She is on public assistance. She earned more income than the father between 2018 and 2020.
[153] The court has discretion to allocate the payment of special expenses. The father will be required to pay 50% of these expenses. This amount is $831.49.
[154] The father advised the court that the child is now covered on his extended health plan through work. He is prepared to maintain this coverage. This should defray most of these special expenses going forward.
[155] The court orders that the father shall maintain the child on any medical, dental or extended health coverage that he has available to him through his place of employment and provide proof of such designation to the mother upon request.
[156] The court makes this order as a provision of necessities for the child pursuant to subsection 34 (2) of the Family Law Act.
Part Eight – Calculation and payment of arrears
[157] This decision will result in support arrears to the father of $26,964.31, calculated as follows:
- Table support:
- 2017: $5,880
- 2018: $5,172
- 2019: $5,280
- 2020: $4,140
- 2021: $2,640.92
- 2022: $3,020.10
- Plus 50% share of special expenses: $831.49
- Total: $26,964.51
[158] The father likely has access to capital to pay a considerable portion of these arrears. He shall pay $10,000 towards the support arrears within 45 days. He may pay the balance of the arrears at $200 each month, starting on November 1, 2022. However, if he is more than 30 days late in making any ongoing or arrears support payment, the full amount of arrears then owing shall immediately become due and payable.
Part Nine – Conclusion
[159] A final order shall go as follows;
a) Starting on January 1, 2017, the father shall pay the mother child support of $490 each month. This is the guidelines table amount for one child based on the father’s imputed annual income of $53,153. b) Starting on January 1, 2018, the father shall pay the mother child support of $431 each month. This is the guidelines table amount for one child based on the father’s imputed annual income of $46,419. c) Starting on January 1, 2019, the father shall pay the mother child support of $440 each month. This is the guidelines table amount for one child based on the father’s imputed annual income of $47,947. d) Starting on January 1, 2020, the father shall pay the mother child support of $345 each month. This is the guidelines table amount for one child based on the father’s imputed annual income of $38,840. e) Starting on January 1, 2021, the father shall pay the mother child support of $425 each month. This is the guidelines table amount for one child based on the father’s imputed annual income of $45,809. f) Starting on January 1, 2022, the father shall pay the mother child support of $508 each month. This is the guidelines table amount for one child based on the father’s imputed annual income of $55,100. g) The father shall pay the mother $831.49 for his 50% share of the child’s special expenses accumulated to date, pursuant to section 7 of the guidelines. h) The father shall maintain the child on any medical, dental or extended health coverage that he has available to him through his place of employment and provide proof of such designation to the mother upon request. i) The father’s child support arrears are fixed at $26,964.31 to date, as calculated in this decision. He shall be credited with any funds collected by the Family Responsibility Office after September 22, 2022, as reflected in its records. j) The father shall pay $10,000 towards the support arrears within 45 days. He may pay the balance of the arrears at $200 each month, starting on November 1, 2022. However, if he is more than 30 days late in making any ongoing or arrears support payment, the full amount of arrears, then owing, shall immediately become due and payable. k) Nothing in this order precludes the Family Responsibility Office from collecting support arrears from any government source (such as HST or income tax refunds) or any lottery or prize winnings. l) Support Deduction Order to issue. m) The father shall provide the mother with complete copies of his income tax returns, including all attachments and schedules, his annual net income statements from Lyft and Uber and his notices of assessment by June 30th each year, starting in 2023.
[160] If either party believes there is an inputting error in the software calculations, or there is a mathematical error in this decision, they may serve and file a Form 14B motion setting out the errors by November 7, 2022. The other party will then have until November 14, 2022 to serve and file a written response. This is to be delivered to the trial coordinator’s office.
[161] The mother is the successful party in this case and is entitled to costs. If she chooses to seek costs she must serve and file written costs submissions by November 21, 2022. The father will then have until November 30, 2022 to serve and file a written response. The submissions shall not exceed three pages, not including any offer to settle or bill of costs. The costs submissions are to be either emailed or delivered to the trial coordinator’s office on the second floor.
Released: October 27, 2022
Justice S.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 four factors that a court should take into account in dealing with retroactive applications. Briefly, they are: 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.