Court File and Parties

DATE: 2023 03 13 COURT FILE No.: Toronto D 55997/12 ONTARIO COURT OF JUSTICE

BETWEEN:

AZIYA JAMIYLA NORRIS Applicant

— and —

ISHAN MASHAWI RILEY Respondent

Before: Justice Carole Curtis

Heard on: 27 September 2022

Reasons for Judgment released on: 13 March 2023

Counsel: Paul Cooper . . . . . . . . . . . . . . . . . . . . . . . .for the Applicant Mother David Russell . . . . . . . . . . . . . . . . . . . . . for the Respondent Father

CURTIS, J.

Overview

[1] This is the decision in the hearing of the father’s motion to change, in which the mother made claims regarding child support for two children. Most other issues were resolved. [1]

[2] The issues at the hearing were these: (a) what start date should be used for child support? and, (b) what is the father’s income for child support purposes, for the years being claimed (2015 to 2020) that is, not only what was he earning, but rather, whether there should be income imputed to him for the purposes of child support?

Background

[3] The mother (the responding party in the motion to change) was 36 years old at the hearing (born 4 November 1985). The father (the moving party) was 36 years old at the hearing (born 16 November 1985). The parents were married in February 2006 and separated on 27 November 2011. There are two children of the marriage:

• Is’maeel Ishan, born 17 September 2006 (15 years old at the hearing); and,
• Saharah Amirah, born 13 April 2009 (13 years old).

Litigation History

[4] The litigation history in this case is more complicated than usual.

[5] The original court case between the parents was started on 7 February 2012. Shortly before that case was started, on 23 November 2011, the father assaulted the mother. He was charged with assault on 20 December 2011. He pled guilty and was convicted.

[6] The parents were represented by lawyers throughout both the original court case and this motion to change.

[7] These are the relevant orders made in the original court case (all on consent):

• Temporary and final consent order by Curtis, J. made 10 May 2012 for:
  • Final sole custody to the mother;
  • Temporary support of $195 per month from 1 May 2012 on “attributed” income $15,000;
  • Annual financial disclosure; and,
  • Orders for passports and travel for mother.
• Temporary and final consent order by Curtis, J. made 9 October 2012 terminating support in the 10 May 2012 order, as of 9 October 2012; and,
• Consent final order by Curtis, J. made 6 December 2012 for:
  • Specified access;
  • Non-removal order regarding father; and,
  • Specified travel order for mother.

[8] The mother was very fearful of the father and was afraid to continue to pursue child support. This is why she withdrew her claims for child support and a restraining order, and the temporary child support order was terminated on consent on 9 October 2012.

[9] This motion to change was started by the father on 14 April 2021. The father asked to change the consent orders by Curtis, J. made 10 May and 6 December 2012 and was now seeking:

• Mandatory consultation regarding parenting decisions; and,
• Specific details regarding increased parenting time.

[10] The mother’s response to the motion to change claimed:

• Supervised parenting time; and,
• Child support in accordance with the father’s income from 1 January 2015.

[11] The mother should have brought a fresh application for support, as there was no support order to vary. This does not appear to have been addressed at the case conferences.

[12] These are the temporary and final orders that were made in the motion to change (all were on consent):

• 20 Oct. 2021 by Curtis, J. on consent:
  • Specified parenting time;
  • Temporary support $564 per month from 1 November 2021 on “disclosed” income $37,440, without prejudice as to start date and amount;
  • Annual financial disclosure; and,
  • Specific financial disclosure order.
• 21 January 2022 by Curtis, J. on consent:
  • Final parenting time order;
  • Temporary support $559.30 per month from 1 September 2021 on “disclosed” income $37,024, without prejudice; and,
  • Annual financial disclosure.
• 27 September 2022 by Curtis, J. final orders regarding on-going support, on consent:
  • From 1 January 2021 $656 per month on income $44,000;
  • From 1 January 2022 $611 per month on income $41,000; and,
  • Annual financial disclosure.

[13] On 27 September 2022, the case was heard as a motion to change. As the only claims outstanding at the hearing were those advanced by the mother, she was treated as the moving party. Neither parent asked for a trial (under Rule 15 (26)), for leave to give oral evidence, nor to cross-examine on the affidavits filed.

Claims at the Hearing

[14] Neither parent filed a draft order at the hearing of the motion to change.

[15] The mother made these claims at the hearing regarding child support: (a) Child support should start from January 2015 (as the father was in school before that); (b) From 1 January 2015, $340 per month on imputed minimum wage $22,500; (c) From 1 January 2016, $597 per month on imputed income $40,000 or $41,000; and, (d) Annual financial disclosure.

[16] The father made these claims at the hearing: (a) Support should start on 1 December 2021; (b) No order for retroactive support should be made; and, (c) No income should be imputed to the father for the years 2015 to 2020, as claimed by the mother.

The Law on Child Support

[17] The purpose of the Child Support Guidelines is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency. [2]

[18] The objectives of the Child Support Guidelines are set out in section 1: (a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances.

Father’s Income

The Law on the Obligation to Make Financial Disclosure

[19] Frank disclosure of income information by the payor lies at the foundation of the child support regime. [3]

[20] Courts have repeatedly and consistently been clear about the importance of disclosure in a child support case, and the seriousness of the obligation to make financial disclosure. [4] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts on the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled. Financial disclosure is automatic. It should not require court orders – let alone three – to obtain production. [5]

[21] Non-disclosure is the cancer of family law. This is an apt metaphor. Non-disclosure metastasizes and impacts all participants in the family law process. Lawyers for recipients cannot adequately advise their clients, while lawyers for payors become unwitting participants in a fraud on the court. Judges cannot correctly guide the parties to a fair resolution at family law conferences and cannot make a proper decision at trial. Payees are forced to accept an arbitrary amount of support unilaterally determined by the payor. Children must make do with less. All this to avoid legal obligations, which have been calculated to be a fair quantification of the payor's required financial contribution. In sum, non-disclosure is antithetical to the policy animating the family law regime and to the processes that have been carefully designed to achieve those policy goals. [6]

[22] Payors should not be rewarded for breaching disclosure obligations in the Guidelines, the rules of court, and other legislation. [7]

The Father’s Financial Disclosure and the Material Relied on at the Hearing

[23] After the mother filed a claim for child support on 24 September 2021, the father had an obligation to serve and file a financial statement, and to make disclosure, as required by and as set out in the Family Law Rules, the Family Law Act, and the Child Support Guidelines. This is standard in any case involving child support and is mandatory.

[24] As well as the disclosure required by stature and regulation, there were two orders regarding financial disclosure made in the motion to change: (a) A consent disclosure order was made 18 October 2021. Both parents were represented by lawyers (the same lawyers who appeared at the hearing). There were multiple case conferences after that date and before the hearing date; and, (b) A second disclosure order was made 21 January 2022, giving the father an extension of time and a further deadline to produce disclosure to 25 February 2022. The father was cautioned regarding the consequences of not complying with court orders.

[25] At the hearing, the father had not made adequate, or any disclosure, despite being represented by a lawyer throughout, and in the face of several disclosure orders and several extensions of time for doing so.

[26] On 30 May 2022 at a case conference the hearing date was set for 27 September 2022, and a specific timetable was endorsed regarding the filing of any additional material:

• The mother, by 29 July 2022; and,
• The father, by 26 August 2022. Both parents were given a significant amount of time (four months) to serve and file any additional material.

[27] Both parents had been present and represented at the case conference where timelines were set for serving and filing material for the hearing, and had been represented by the same lawyers who were appearing at the hearing.

[28] On 23 September 2022, two business days before the hearing, the father filed a Form 14B motion seeking an extension of time to serve and file a financial statement and disclosure. [8] The court has repeatedly warned lawyers that the court is unable to accommodate late filing, under the current circumstances, even when on consent. And in this case, a clear timeline had been provided for serving and filing, and four months was given to serve and file. The father’s request to extend the time to file his financial statement and disclosure was dismissed.

[29] As a result of the father’s conduct, the hearing proceeded without any financial statement from the father, and without any disclosure from him. The father’s lawyer said that the disclosure was served on the mother but was not filed by the father.

[30] No financial statement at all was filed by the father in the motion to change. The mother’s response that claimed child support was filed on 24 September 2021. The father knew for a year before the hearing that support was claimed and that a financial statement was required. It is surprising when this happens with an unrepresented litigant, particularly when repeated court orders about this are made. But it is stunning when this happens and there is a lawyer involved for the payor.

[31] At the hearing, the father sought leave again to file his financial statement late, in open court, during the hearing. This request was refused. Then the father sought to adjourn the hearing to be able to file his financial statement and disclosure. Initially the mother was consenting to this adjournment but wanted terms (involving costs, a sworn financial statement, and court orders for the on-going support, which had not yet been resolved at that stage).

[32] Then, the on-going support was settled on consent for 2021 and 2022 (based on father’s incomes of $44,000 for 2021 and $41,000 for 2022). After this, the mother opposed the father’s request for an adjournment of the hearing. For oral reasons given, the adjournment request was refused.

[33] At the hearing the father’s financial statement and disclosure were also not filed by the mother, nor relied on by the mother, although the mother was repeatedly offered this option by the court.

Retroactive Child Support Orders

The Start Date for Support

Legal Considerations

[34] 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 i. 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;

[35] Any support claimed after an application is issued is prospective support, not retroactive support. [9]

[36] The Supreme Court of Canada has set out the framework that should be applied for applications to retroactively increase support: [10] (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 [11] continue to guide this exercise of discretion, as described in Michel v Graydon. [12] 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; and, (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.

[37] This framework 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. [13]

[38] 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. These are the steps for the court to take: [14] (a) The first step will be to determine the presumptive date of retroactivity as described in Colucci; (b) 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; and, (c) 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.

[39] 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. [15]

[40] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. [16]

[41] 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. [17]

[42] Retroactive awards are not exceptional. They can always be avoided by proper payment. [18]

[43] 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. [19]

[44] The factors in the D.B.S. decision guide the court in the exercise of discretion regarding the start date of support. None of these factors are decisive or take priority and all should be considered in a global analysis. [20] 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. [21]

[45] 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. [22]

What is the Presumptive Start Date for Support?

[46] The first step is to determine the presumptive start date for support.

[47] The mother’s request for support was in the response to the motion to change filed 24 September 2021. This would be the date of formal notice. However, Colucci sets out that the presumptive start date for support cannot be more than three years before the date of formal notice. Accordingly, the presumptive start date of support is 24 September 2018.

Should the Court Deviate from the Presumptive Start Date for Support?

[48] The mother asks the court to deviate from the presumptive start date of support and order support retroactive to 1 January 2015, the year that the father graduated from his education program.

[49] The father opposes this. He does not want any support order made. He says that support should start on 1 December 2021 [23], that no order for retroactive support should be made and that no income should be imputed to him for the years 2015 to 2020, as claimed by the mother.

[50] The mother provided an understandable reason for her delay in seeking child support. She was afraid of the father due to a history of violence in the relationship. She was so afraid that she withdrew her claim for child support and a restraining order in the original application, and withdrew these claims even after a temporary consent support order was made in 2012. That is unusual behaviour and signifies the seriousness of the situation. In fact, she did not return the matter of child support to court, and only came to court for support in 2021 in response to the father’s motion to change (brought regarding parenting issues).

[51] The father has engaged in significant, egregious blameworthy conduct. He has paid no support for his children basically since the separation in 2011, or since the original temporary support order was terminated in 2012. , although the father was seeing the children from 2013 to 2019. The father has repeatedly preferred his own interests to the children’s interests.

[52] The circumstances of the children have been disadvantaged. The mother has provided for all their needs, but this has undoubtedly been difficult for her to do.

[53] Balancing all these considerations the court will deviate from the presumptive start date for support and will order support to start on 1 January 2015, as claimed by the mother.

The D.B.S. Factors

Delay

[54] 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. [24]

[55] 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. [25]

[56] 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. [26]

[57] It is generally a good idea to seek child support as soon as practicable, but it is unfair to bar 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. [27]

[58] 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. [28]

[59] The recipient’s delay in enforcing arrears is irrelevant to the analysis. Courts must bear in mind that child support arrears are a debt. Under general principles of debtor-creditor law, the debtor is required to seek out and pay the creditor, and debts are not forgiven by the mere passage of time in the absence of a statutory limitation period. [29]

[60] 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.: [30] (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; and, (j) The deliberate delay of the application or the trial by the payor.

[61] These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other, fear and danger. [31]

Blameworthy Conduct

[62] Courts should apply an expansive definition of blameworthy conduct. [32]

[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. [33]

[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. [34]

[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. [35]

[66] 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. [36] 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.

[67] The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness). [37]

Circumstances of the Child

[68] 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. [38]

[69] 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. [39]

[70] 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. [40]

[71] The fact that the child did not have to suffer hardship because of their 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. [41]

[72] The fact that the recipient will indirectly benefit is not a reason to refuse to make the retroactive award of support. [42]

Hardship

[73] 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. [43]

[74] 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. [44]

[75] 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. This is a crucial part of the equation. [45]

[76] In all cases, hardship to the payor may be addressed by the form of payment. [46]

Retroactive Claim Analysis

[77] The father had repeated and ample notice of the claim for child support. The original application started on 7 February 2012 claimed support. The father had notice 10 years ago of the child support claims. A temporary consent order for support was made in the original application on 10 May 2012 (both parents had lawyers). The temporary order required the father to make annual financial disclosure. All orders in both the original application and the temporary orders in the motion to change were made on consent.

[78] The father continued to see the children and saw them from 2013 to 2019. The father brought this motion to change in 2021 as he says he was estranged from the children.

[79] The father knew he had financial obligations for the children. He says he helped to buy things for the children, and he tried to give the children gifts, which he says he thought were a form of support. He was aware of his obligation to contribute to the support of the children. Yet, he paid no child support for many years (from about 2012 for about eight years).

[80] The mother received no financial disclosure from the father from 2015 to now (not pursuant to the original temporary support order in 2012, nor, indeed, in the father’s current motion to change). The father’s income was unknown to the mother.

[81] The mother was served with the father’s financial statement and disclosure two days before this hearing. It was the first financial statement she had received from the father since 2012. The father did not file the financial statement, and the mother did not file it.

[82] The father completed two education programs: a liberal arts program at Seneca College, for two years, and a program in international studies and relations at York University, for three years. He graduated in June 2015. There was no evidence regarding what the father was doing in the years after that, 2015 to 2020.

[83] There was no evidence of the father’s inability to work for medical reasons (this issue was not pleaded, not raised, and not argued).

[84] The father attempted to argue he had not committed any blameworthy conduct. He did not pay support for about eight years, and did not make the disclosure required on a motion to change, or that contained in two court orders for disclosure. This behaviour is blameworthy conduct.

[85] The father cannot go through two years of litigation not making any of the disclosure he’s required to make, and then show up at the hearing of the motion to change and say “I am producing the disclosure now (two days before the hearing) and I want to rely on this now”.

[86] The father maintains steady employment at UPS. As a result of the father’s behaviour in the litigation that he started, there is no proper evidence to determine what his past income should be. The only evidence on which the court can rely about his past income is the evidence about his current income. The father’s income during the years in question (2016 to 2020) should be determined to be in a similar range to his current income. No information was provided regarding what the father was actually doing during those years.

[87] The payor in this case should not be permitted to benefit from the fact that the recipient was afraid of him. As a result, 10 years ago, although a temporary support order was in place, she decided to withdraw her claim for child support. The payor’s behaviour is clearly blameworthy conduct. It would be against public policy to allow such a circumstance (i.e., violence by the payor against the recipient, and her fear of the violence) to give the payor a “pass” on paying support for all the years that the recipient could not and did not pursue child support.

[88] The father shall pay child support from 1 January 2015 onwards.

The Law regarding Imputing Income

[89] Section 19 of the Child Support Guidelines provides that the court may impute to a spouse “such amount of income … as it considers appropriate” and provides a non-exhaustive list of such circumstances. These are the relevant portions of s. 19: 19.(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include, (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse; (e) the spouse’s property is not reasonably utilized to generate income; (f) the spouse has failed to provide income information when under a legal obligation to do so; (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.

[90] Section 1 of the Guidelines stipulates that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. The need to ensure appropriate financial support for the children is dealt with by imputing income. 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 legal obligation, a parent must earn what he is capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness. [47]

[91] 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. [48]

[92] 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: (a) Is the party intentionally under-employed or unemployed? (b) If so, is the intentional under-employment or unemployment required by virtue of reasonable educational needs? and, (c) If not, what income is appropriately imputed?

[93] There is no need to find a specific intent to evade child support obligations before income is imputed. The payor is intentionally under-employed if that parent chooses to earn less than he is capable of earning. That parent is intentionally unemployed when he chooses not to work when capable of earning an income. [49]

[94] The court has a broad discretion to impute income where the father is not working to his potential. In exercising discretion, a court will bear in mind the objectives of the guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. The fundamental principle is that the court must estimate the actual means which the parent has available for child support. [50]

[95] These are the general principles to be considered regarding child support and when determining whether to impute income: [51] (a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices; (b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children; (c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent; (d) Imputing income to a parent on the basis that the parent is "intentionally under-employed or unemployed" does not incorporate a requirement for proof of bad faith. "Intentionally" in this context clarifies that the provision does not apply to situations beyond the parent's control; (e) The determination to impute income is discretionary, as the court considers appropriate in the circumstances; (f) Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision; (g) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action; and, (h) A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.

[96] Even if the court decides to impute income due to the payor’s reckless behaviour or misconduct, it is not bound to impute income at the payor’s previous income level. It can impute income in an amount different than what the payor had been previously earning, or it can impute different amounts of income for different time periods. Courts have a significant degree of discretion when imputing income. [52]

[97] These are the legal considerations for imputing income to a person who, due to their own fault, is not earning what they are capable of earning: [53] The list of categories set out in section 19 is not exhaustive. The court has the discretion to impute income in circumstances that are not only analogous but also those in which imputation would be consistent with legislative intent. [54] The wording of section 19 of the Guidelines is open-ended (“which circumstances include”), indicating that the categories listed in that section are merely examples of situations in which income may be imputed. There are, therefore, other potential scenarios in which income can and should be imputed. [55]

[98] In determining a party's capacity to earn income, the principles which the court should consider include the following: [56] (a) There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children; [57] (b) The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments; [58] (c) If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations; [59] (d) When a parent experiences a sudden change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities in order to satisfy their obligation to contribute to the support of their children; [60] (e) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them; [61] (f) The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute; [62] and, (g) A parent who decides to stay at home to care for subsequent children, or to work in the home at a reduced rate so that they can continue to care for the children, may be imputed a reasonable income in the absence of evidence to support a finding that the parent's underemployment is required by the needs of the subsequent children within the meaning of section 19(1)(a) of the Guidelines. [63]

[99] The burden of proof is on the payor to satisfy the court on a balance of probabilities the amount of income upon which child support should be based. Where this information is lacking or is insufficient, the court may need to rely on other information. [64]

[100] The third question in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. [65]

Imputing Income: Adverse Inference for Failing to Provide Disclosure

[101] 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. [66]

[102] The court should draw an adverse inference against the respondent for his failure to comply with his disclosure obligations as provided for in s. 21 of the Guidelines, and impute income. [67]

[103] A payor cannot fail to comply with the rules about disclosure and then benefit from his behaviour. [68]

Income Determination - Evidentiary Basis

[104] There must be an evidentiary basis to make an income determination. [69]

[105] The onus is on person requesting it to show a reasonable inference upon which the order can be made. [70]

Analysis Re Imputing Income

[106] The issue of determining the father’s income for support purposes, or imputing income to the father was poorly handled by the lawyers in this case.

[107] This was the father’s motion to change, started on 14 April 2021. The mother’s claim to change support was made on 24 September 2021, and from that point, the father was required to serve and file a financial statement. In the 13 months between the mother’s claim for child support and the hearing date, he did not file a financial statement. He served the mother with a financial statement only two days before the hearing of the motion to change, but it was not filed. The court cannot, in this case, usefully even enter into the analysis in Drygala v. Pauli due to the evidence that was presented, or more accurately, the evidence that was not presented.

[108] The evidence about the father’s work history and income for the years 2012 to 2019 was not just inadequate; there was no such evidence, at all. No evidence produced by the father, and no evidence produced by the mother. The father did produce some level of disclosure to the mother on 24 September 2022 (including notices of assessment, bank statements, credit card statements). It is surprising that the mother did not file the disclosure she received from the father in making her arguments to impute income to the father for the years 2015 to 2020 (the years for which she claimed child support at the hearing, as support had been resolved from 2021 onwards). She was repeatedly given the opportunity to do so by the court, and she declined to do so.

The Evidence and Findings about the Evidence

[109] The court makes the following findings (on the evidence and the lack of evidence): (a) The father failed to make disclosure of significant and relevant matters during the litigation; (b) He delayed making disclosure, failed to produce requested, reasonable disclosure and did not make full and frank disclosure as required; (c) He paid no child support for the two children for many years, from at least 2012; (d) He benefitted financially for many years due to the mother’s fear of him; (e) He benefitted financially for many years by not paying any support for these two children; [71] (f) The mother has been solely financially responsible for the children since the separation in November 2011; (g) he knew, from at least the consent court order made 10 May 2012, that he had an obligation to pay child support, that it was based on his income, and that it was in accordance with the Child Support Guidelines; and, (h) there is no evidence that he was not capable of earning for the years in question (2012 to 2020) what he earned in 2021 and 2022 (that is, $44,000 and $41,000);

Imputing Income to The Father

[110] The children at the time of the hearing were 15 and 13 years old. The father has not supported these two children since the separation in November 2011 (until, perhaps, when the temporary support orders were made in the current motion to change).

[111] The father has clearly failed to recognize his child support obligation, and intentionally so. He has made choices in this litigation not to make full and frank disclosure, and in fact, not to even make the minimum level of disclosure required in such cases, nor to comply with two court orders for disclosure.

[112] In determining an amount to impute as income for the father for child support purposes, the court reviewed the age, education, experience, skills and health of the father, as well as his current earning history, the amount of income he could earn if he worked to capacity, his recent work history, and his ability to earn income, to determine an amount that is fair and reasonable. There was very little evidence available on these topics.

[113] The court can draw an adverse inference against a party for his failure to comply with the disclosure obligations (as provided for in the Family Law Rules, the Family Law Act, the Child Support Guidelines, and in this case, two disclosure orders), and did so in this case.

[114] All support paying parents have an obligation to maximize their income. Income shall be imputed to the father under s. 19 of the Child Support Guidelines, at these amounts. For the year 2015, the court will impute minimum wage, as requested by the mother, and consistent with evidence that he completed his final program of education and graduated in June 2015. In the years following (2016 to 2020) the court will impute income at the level he is currently earning $43,000 (the average of his incomes for 2021 and 2022, and the amounts on which the consent child support order from 1 January 2021 is based):

Year	Income Imputed
2015	Minimum wage $22,800 $23,400 from 1 October 2015
2016	$43,000
2017	$43,000
2018	$43,000
2019	$43,000
2020	$43,000

[115] Child support for these two children should start on 1 January 2015 (a very reasonable start date requested by the mother, who has not received any support for these children for many years).

[116] The father has unrealistic expectations about who is supposed to be supporting these children. Whose responsibility are these children? They are his responsibility. The children are not just the responsibility of the mother. The father did not pay support for these children when he had such an obligation for many years. As well, the father has known the legal nature of the child support obligation and how it would be calculated for many years, since the consent court order made 10 May 2012. Yet he still did not pay support.

Claims re Travel and Passports

[117] At the hearing of the motion to change, the parties told the court they would be filing a consent regarding travel and passport orders. No consent was filed regarding the mother’s claims for these orders. However, in the original application, these orders were made regarding travel and passports: (a) A temporary consent order made 10 May 2012 allowing the mother to travel with the children without the father’s consent, and allowing her to apply for the children’s passports without the father’s consent; and, (b) A final consent order made 6 December 2012 allowing the mother to travel with the children without the father’s consent.

[118] No final orders were made in the original application regarding passports, and the temporary order of 10 May 2012 regarding passports terminated when final orders were made in the application.

[119] The passports issue was not resolved. This issue is adjourned, and the court staff shall set a date for a case conference (briefs required), for the parties to address this issue. If the matter can be resolved, the parties can file a consent with a Form 14B and ask for a final order. If the mother does not wish to have a final order on this issue, a notice of withdrawal of this claim should be filed.

Orders

[167] The father shall pay child support to the mother, according to the Child Support Guidelines table amount, for the children, as follows: (a) From 1 January 2015, $345 per month, on imputed minimum wage $22,800; (b) From 1 October 2015, $351 per month, on imputed minimum wage $23,400; (c) From 1 January 2016, $630 per month on imputed income $43,000; and, (d) From 1 December 2017, $639 per month, on imputed income $43,000.

[170] Father shall produce to mother every year by 1 July, starting in 2023, copies of his Income Tax Returns and Notices of Assessment pursuant to s. 24.1 and the disclosure requirements of the Child Support Guidelines.

[171] All other claims made by the parents not otherwise specifically addressed are dismissed.

Costs

[172] The mother was successful on the motion to change and is entitled to her costs. The parties may make submissions regarding amount of costs only at the return of the case conference regarding the claim for passports orders. The parties shall also make submissions, in writing, maximum two pages (plus Offers to Settle and summaries of time spent). Submissions shall be filed with a Form 14B. This is the timeline for submissions regarding the amount of costs, only: (a) Mother by Friday 31 March 2023; and, (b) Father by Friday 14 April 2023.

Released: 2023 03 13

Justice Curtis

Footnotes

[1] Many parenting issues were resolved the day before the hearing of the motion to change. However, the mother’s claims regarding passports and travel were not dealt with and are referred to in more detail below.

[2] Lee v. Lee.

[3] Colucci v. Colucci, 2021 SCC 24, para. 50.

[4] particularly the Ontario Court of Appeal and the Supreme Court of Canada.

[5] Roberts v. Roberts, 2015 ONCA 450, paras. 36-37.

[6] Leitch v. Novac, 2020 ONCA 257, para. 44.

[7] Colucci, supra, para. 95.

[8] Although the Form 14B motion was filed on 23 September 2022, the case management Judge did not see the Form 14B motion request until the day before the hearing, on 26 September 2022.

[9] Mackinnon v. Mackinnon.

[10] Colucci v. Colucci, supra, para. 114.

[11] The Supreme Court in D.B.S. v. S.R.G., 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.

[12] Michel v. Graydon, 2020 SCC 25.

[13] M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189; T.B. v. O.T., 2023 ONCJ 35; V.S.B. v. B.L.O., 2022 ONCJ 506.

[14] C.S. v. K.M., 2023 ONCJ 106.

[15] D.B.S., supra, para. 12.

[16] Michel v. Graydon, supra, para. 25.

[17] Michel v. Graydon, supra, para. 132.

[18] D.B.S., supra, para. 97.

[19] Michel v. Graydon, supra, para. 121.

[20] D.B.S. supra, para. 99.

[21] D.B.S., supra, para. 133.

[22] Michel v. Graydon, supra, para. 32.

[23] A date later than the start of the mother’s claim for support in this case.

[24] Michel v. Graydon, supra, para. 121.

[25] Michel v. Graydon, supra, para. 113.

[26] Michel v. Graydon, supra, para. 86.

[27] Michel v. Graydon, supra, para. 87.

[28] Michel v. Graydon, supra, para. 111.

[29] Colucci, supra, para. 100.

[30] Michel v. Graydon, supra.

[31] Michel v. Graydon, supra, para. 86.

[32] D.B.S., supra, para. 106.

[33] D.B.S., supra, para. 106.

[34] Michel v. Graydon, supra, para. 119.

[35] Michel v. Graydon, supra, para. 34.

[36] D.B.S., supra, para. 5.

[37] Michel v. Graydon, supra, para. 36.

[38] Michel v. Graydon, supra, para. 120.

[39] Michel v. Graydon, supra, para. 122.

[40] Michel v. Graydon, supra, para. 123.

[41] Michel v. Graydon, supra, para. 123.

[42] Michel v. Graydon, supra, para. 123.

[43] Michel v. Graydon, supra, para. 124.

[44] Michel v. Graydon, supra, para. 125.

[45] Michel v. Graydon, supra, paras. 125, 126.

[46] Michel v. Graydon, supra, para. 124.

[47] Drygala v. Pauli, paras. 31, 32, 35.

[48] Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi.

[49] Drygala v. Pauli, supra, para. 28.

[50] Obodoechina v. Ayetor, 2013 ONCJ 738, para. 57.

[51] Duffy v. Duffy, 2009 NLCA 48, para. 35; Child Support Guidelines, supra, s. 19(1)(f); Daulby v. Daulby, 2007 ONSC 5600; Smith v. Pellegrini, paras. 34-35; Maimone v. Maimone.

[52] Menegaldo v. Menegaldo, 2012 ONSC 2915; Tillmans v. Tillmans, 2014 ONSC 6773; Tahir v. Khan, 2021 ONCJ 12, para. 55.

[53] Rogers v. Rogers, 2013 ONSC 1997; Tahir v. Khan, supra, para. 40.

[54] Bak v. Dobell, 2007 ONCA 304.

[55] Riel v. Holland.

[56] Corcios v. Burgos, 2011 ONSC 3326, para. 40.

[57] L. (N.) v. P. (B.); Drygala v. Pauli, supra, para. 46.

[58] Hanson v. Hanson; L. (N.) v. P. (B.), supra.

[59] Lawson v. Lawson; Blake v. Blake.

[60] Barta v. Barta; M. (S.D.) v. M. (K.F.), 2004 BCSC 70; Quintal v. Quintal.

[61] Daulby v. Daulby, 2007 ONSC 5600.

[62] Korwin v. Potworowski, 2007 ONCA 700.

[63] Lachapelle v. Vezina.

[64] Scholes v. Scholes.

[65] Lawson v. Lawson.

[66] Charron v. Carriere, 2016 ONSC 4719.

[67] Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583; Smith v. Pellegrini; Maimone v. Maimone; Gray v. Rizzi, 2016 ONCA 494.

[68] Tanhehco v. Cao, 2018 ONCJ 388, para. 78.

[69] Quintal v. Quintal.

[70] West v. West.

[71] In claims for retroactive or historical support, the court can take into account the benefit to the payor of unpaid child support for the full time in which it was unpaid. Michel v. Graydon, supra, para. 125.