ONTARIO COURT OF JUSTICE DATE: 2023 07 12 COURT FILE No.: Toronto D21150/18

BETWEEN:

Stacy Hamilton Applicant (Responding Party)

— AND —

Fabian Salmon Respondent (Moving Party)

Before Justice Szandtner

Heard on May 29, 2023 Reasons for Decision released on July 12, 2023

Stacy Hamilton .................................................................................................... Self-represented Fabian Salmon..................................................................................................... Self-represented

SZANDTNER J.:

Part One – Introduction

[1] This hearing was about the respondent (the father) Mr. Salmon’s motion issued September 15, 2021, to change the child support terms contained in the order of Justice Sager dated January 16, 2020 (the existing order).

[2] The existing order was made on the consent of the parties. It states that the father shall pay to Stacy Hamilton (the mother) for A.S. (the child) the amount of $408.00 per month commencing January 1, 2020. The order was not based on the Ontario Child Support Guidelines (the guidelines) for one child and the payor’s actual 2018 Notice of Assessment annual income of $44,200.00. The parties agreed to an amount that is less than the guidelines for one child, having regard to the father’s obligation to support five other children.

[3] The father seeks to base his child support according to the guideline amount for his current income tax assessments. He seeks the following orders:

[4] An order commencing July 1, 2021 in the amount of $282.00 per month based on his annual income in his 2020 Notice of Assessment of $33,037.00.

[5] An order commencing January 1, 2022 in the amount of $258.00 per month based on his annual income in his 2021 Notice of Assessment of $30,251.00.

[6] An order commencing on January 1, 2023 in the amount of $248.00 per month based on his annual income in his 2022 Notice of Assessment of $29,147.00.

[7] An order that arrears be set at $2,636.90 and that he repay the arrears at a rate of $50.00 per month until they are paid in full.

[8] The mother (the responding party on the motion to change) asked the court to vary the father’s child support payable retroactively to the date of the order to an imputed income of $89,835.20 which is the average earnings for a licensed electrician. Her position is that the amount payable should be adjusted to $832.00 per month commencing on the date of the existing order. She is also seeking $5707.00 in retroactive payments towards their daughter’s gymnastic expenses and that the gymnastic expenses be shared on a proportionate basis going forward.

[9] The parties filed affidavits and financial statements as their direct evidence. They were both self-represented. The father called two witnesses, his current partner’s father Clinton Brown and his friend Delroy Williams. The mother called an ex-partner of the father Kiesha Baird. The parties cross-examined one another and the witnesses called by the opposing party.

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

a) Has there been a material change in circumstances regarding the father’s income since the existing order was made? b) If so, when is the presumptive start date that child support should be changed? c) Should the court deviate from the presumptive start date when child support should be changed? d) At what level should the court assess the father’s income in any year it determines that child support should be changed? e) Are section 7 expenses owed? f) How should any support arrears owing be paid?

Part Two – Brief Background Facts

[11] The father is 35 years old. He works as a licensed electrician.

[12] He has 9 children with multiple partners. He is currently in a relationship with Jaime Brown. They have two children together.

[13] The parties had a daughter A.S. together who was born in 2008 and is now 15 years old (the child). The child resides in the mother’s primary care.

[14] The father did not appeal the existing order. He did not move to set it aside.

[15] The mother did not appeal the existing order. She did not move to set it aside.

[16] The father issued the within Motion to Change on September 15, 2021. The mother filed her Response to the Motion to Change on November 19, 2021.

[17] As of May 1, 2023, the father owes approximately $2,800.00 in arrears.

Part Three – The father’s position and evidence

[18] The father is currently in a relationship with Jaime Brown. They have two children together. They have been together since 2015.

[19] He claims to not reside with her and their two children. He states that he resides with his mother.

[20] He provided no details with respect to the child support he pays (if any) to his other children who are not before the court. He has not made a claim for undue hardship.

[21] He has been a licensed electrician for five years. He earns $43.19 per hour.

[22] He currently works three days per week for Power Core Electric Ltd. He provided a letter from his employer which states that he was hired on March 2, 2020, laid off on June 2021 and recalled August 2022. The letter also stated that COVID had negatively impacted this employer’s general workflow.

[23] The father is part of a union – International Brotherhood of Electrical Workers (Local 353.) He stated that he is not permitted to work on electrician jobs outside of his union. He provided an excerpt from the Principal Agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario (the Contractor) and the International Brotherhood of Electrical Workers (the Union). The document expires on April 30, 2022. Under Work Ethics it indicates that no member of the union will be permitted to contract or to perform electrical work other than for his/her present Employer and no member of the Union shall be permitted to work at electrical construction work for anyone who is not a Party to this Agreement. No witness was called to explain this section or confirm that it is still in force at the time of trial.

[24] The father called his partner’s father Clinton Brown as a witness. The focus of his testimony in chief was the purchase agreement for the house where the father’s current partner resides. Mr. Brown stated that the father was on the purchase agreement. He provided the unhelpful explanation that the father co-signed because of “personal and confidential information.” According to Mr. Brown, in spite of his name on the document, the father has no interest in the property. The father was asked to put his signature on the property and sign as a purchaser on Mr. Brown’s behalf as a favor. He claims that the parties agreed that the father had no legal claim to the property.

[25] Mr. Brown confirmed that his daughter Jaime Brown and the father have been in a relationship since 2015. The home was purchased in 2017. He stated that in spite of their relationship, the father never resided in the house with his partner (Mr. Clinton’s daughter) and their two children. He does not know why they had this arrangement.

[26] The father also called his friend Delroy Williams as a witness. The focus of his testimony in chief was a loan of $7,500.00 that he made to the father. He confirmed that he loaned the money and stated that he was told by the father that he required the money to pay for child support.

[27] On cross-examination Mr. Williams stated that he is an event planner and owns his own business. He organizes events for 200 – 500 people. The events take place on different islands such as Jamaica, Barbados, St. Vincent and Trinidad. He stated that the father helps him with electrical work at his events. The father has flown to assist on his international events approximately 6-7 times over the past two years. His role is to set up equipment and work as an electrician for his company. He stated that he covered the costs for the father to attend and work at the international events.

Part Four – The mother’s position and evidence

[28] The mother states that the father is underemployed. She takes the position that there is no reason for him to not be working full time as a licensed electrician. He has provided no evidence that he is disabled and unable to work full time.

[29] The mother alleges that the father has falsified his credit statement. She served the father with a Request for Information seeking a copy of the father’s credit report from all credit reporting agencies. The father failed to respond to the request. The father has also provided no documentation to support the debts listed on his financial statement.

[30] The mother is claiming that the father is taking steps to hide his income and assets to avoid paying child support. She relies on the fact that he is listed as a co-owner on the purchase agreement of the house where his partner and children currently reside. She provided evidence that he transferred the joint ownership with his current partner Jaime Brown to Jaime Brown as sole owner. She states that it is not credible that the father is not currently residing in this home with his current partner and their children. She also provided evidence that he co-owns a luxury vehicle with Barry Parris.

[31] The mother is also claiming retroactive extraordinary expenses from the father for their daughter’s competitive gymnastic fees. She has provided a detailed accounting of same.

Part Five – The start date for any support adjustment

5.1 Legal considerations

[32] The father’s motion to change support is governed by subsection 37 (2.1) of the Family Law Act which reads as follows:

Powers of court: child support (2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may, (a) discharge, vary or suspend a term of the order, prospectively or retroactively; (b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (c) make any other order for the support of a child that the court could make on an application under section 33.

[33] The powers of the court on a motion to vary a child support order are very broad. The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis. The court's authority with respect to arrears is similarly broad and includes the power to rescind the arrears and interest, either entirely or in part, or to reduce the amount of arrears payable. See: Meyer v. Content, 2014 ONSC 6001.

[34] The Supreme Court of Canada set out the framework for deciding applications to decrease support retroactively at paragraph 113 in Colucci v. Colucci, 2021 SCC 24 as follows:

(1) The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice. (2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation. (3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings. (4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct. (5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[35] Given the informational asymmetry between the parties, a payor’s success in obtaining a retroactive decrease will depend largely on the payor’s financial disclosure and communication. Indeed, effective notice in this context is only “effective” when there has been disclosure of the changed financial circumstances. At the stage of considering the D.B.S. factors, disclosure will once again be a key consideration in assessing whether the payor’s conduct operates to shorten or lengthen the presumptive period of retroactivity. See: Colucci v. Colucci, 2021 SCC 24, par. 74.

[36] In Colucci v. Colucci, 2021 SCC 24, the court discussed what constitutes effective notice when a payor seeks a retroactive decrease in income, writing the following at paragraphs 87 and 88:

Para 87 It is not enough for the payor to merely broach the subject of a reduction of support with the recipient. A payor seeking a retroactive decrease has the informational advantage. The presumptive date of retroactivity must encourage payors to communicate with recipients on an ongoing basis and move with reasonable dispatch to formalize a decrease through a court order or change to a pre-existing agreement. The timing and extent of disclosure will be a critical consideration in ascertaining whether and when effective notice has been given and determining whether to depart from the presumptive date of retroactivity. Para 88 In decrease cases, therefore, courts have recognized that effective notice must be accompanied by “reasonable proof” that is sufficient to allow the recipient to “independently assess the situation in a meaningful way and respond appropriately” (Gray, at para. 62, citing Corcios, at para. 55; Templeton, at para. 51). This ensures that effective notice provides a realistic starting point for negotiations and allows the recipient to adjust expectations, make necessary changes to lifestyle and expenditures, and make informed decisions (Hrynkow v. Gosse, 2017 ABQB 675, at para. 13; Hodges v. Hodges, 2018 ABCA 197, at para. 10).

[37] A brief email will not put a support recipient sufficiently on notice of a need to reduce child support. Rather, specifics of the alleged change must be set out, along with sufficient evidence to support the legitimacy of the change. Additionally, payors need to be diligent in commencing a proceeding if the recipient will not agree to reduce the support obligation. See: Jonas v. Akwiwu, 2021 ONCA 641.

[38] 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 v. Graydon, 2020 SCC 14, par. 124.

5.2 Has there been a material change in circumstances in the father’s income?

[39] The father states that there has been a material change in circumstances because COVID has impacted his ability to earn full time wages through his union as an electrician.

[40] The threshold for a person to establish a material change in circumstances in their income is fairly low. See: Retroactive Support after Colucci, by Professor Rollie Thompson, 40 CFLQ 61.

Paragraph 1 of section 14 of the Child Support Guidelines (the Guidelines) reads as follows:

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

1. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

[41] The court finds that the father has met this low threshold. The father has provided evidence from his employer Power Core Electric Ltd. that COVID had an impact on the work available to electricians they employ.

5.3 When is the presumptive start date for support to be changed?

[42] Colucci v. Colucci, 2021 SCC 24 sets out that the presumptive start date to change support should be the date of effective notice, but that date should not be more than three years before the date of formal notice.

[43] Colucci v. Colucci, 2021 SCC 24 sets out that effective notice must be accompanied by “reasonable proof” that is sufficient to allow the recipient to “independently assess the situation in a meaningful way and respond appropriately”.

[44] Accordingly, the court finds that the father’s effective notice was only accompanied by reasonable proof of his claim to reduce support when he issued his Motion to Change September 15, 2021. Effective notice is the same date as formal notice in the circumstances of this case. Therefore, October 1, 2021 is the presumptive start date to change the child support payable.

[45] The mother seeks a start date as at the date of the existing order. She did not provide any evidence that she had provided the father with effective notice of her claim for an adjustment prior to the filing of her response to his Motion to Change. Her claim does not affect the start date of October 1, 2021 for any support adjustment.

5.4 Should the court deviate from the presumptive start date to change support?

[46] The court must next determine whether it should deviate from the presumptive start date to change support. The factors the court must consider when deciding whether to depart from the presumptive date of retroactivity are as follows:

1. Reason for the delay in bringing the claim;
2. Conduct of the payor parent;
3. Circumstances of the child; and,
4. Hardship that may be caused by a retroactive award.

[47] The existing order was made on consent of the parties.

[48] The father did not provide a compelling reason for his delay in bringing his Motion to Change. He participated in the initial court proceeding when the existing order was made and has been resident in the jurisdiction since that time.

[49] The mother did not provide a compelling reason for her delay in seeking to adjust the child support. She also participated in the initial court proceeding when the existing order was made and has been residence in the jurisdiction since that time.

[50] The child has been residing with her mother who is earning more than the father.

[51] The court will not deviate from the presumptive start date of October 1, 2021 to change the child support order. It finds that upon considering these factors that this result is not unfair in these circumstances.

Part Six – Change to the existing order

6.1 Legal considerations for imputing income

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

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

a) Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. C.A.). b) The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income: (i) Is the party intentionally under-employed or unemployed? (ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs? (iii) If not, what income is appropriately imputed? c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). 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, [2000] O.J. No. 453, (Ont. Fam. Ct.). f) 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. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583. 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.

6.2 Analysis

[54] The court finds the following facts that are relevant to a consideration of what income can be imputed (if any) to the father:

a) The father is 35 years old. b) He is a licensed electrician. He is a member of a union. c) He confirmed that he is paid at a rate of $43.19 per hour. d) He has provided evidence by way of a letter from one employer, Power Core Electric Ltd. This employer hired him in March of 2020. The employer laid him off in June 2021 and rehired him in August 2022. He provided the Record of Employment he received on July 15, 2021. He is currently employed by this employer three days per week. e) He has provided his Notices of Assessment for 2019 (total income $41,644), 2020 (total income $33,037) and 2021 (total income $30, 251). f) He has called a witness that testified that he has been able to travel to his friend’s international events up to four times a year to work as an electrician in exchange for his expenses. g) He has provided an excerpt from the Principal Agreement of the Union with respect to working as an electrician outside of the union employers. h) He has provided no evidence of a physical disability that would impact his ability to work full-time. i) On June 15, 2022, Justice Jones ordered that he provide disclosure of all union employment obtained by him for 2019, 2020, 2021 and 2022. The only evidence produced at trial was a T4 from Power Core Electric reflecting $17,632.08 in income. j) On June 15, 2022 Justice Jones ordered that the father provide a job search list with the name, address, phone number and email address for the employers to whom he had applied for work and the outcome of those applications. There was no job search evidence before the court at the hearing.

[55] The court finds that the father is capable of earning $43.19 per hour as a licensed electrician. There is no medical reason preventing him from working full time as in this capacity.

[56] The court finds that the evidence offered by father with respect to his Power Core Electric employment does not establish that he cannot work full time in his field. It simply states that Power Core’s contracts were affected by COVID in general.

[57] There is no evidence of the particulars of the hours the father worked for Power Core. There is no evidence that the father requested full time hours. There is no evidence that he sought an alternative employer approved by the union to maximize his earnings. There is no evidence that he sought alternate employment outside of the electrical work to make up this deficit. Further, the father failed to call a Power Core Electric representative as a witness to clarify these issues. Further, the mother was not able to test this evidence by way of cross-examination.

[58] The court finds on the evidence that the father did not seek additional employment to make up this part time status, rather he chose to frequently travel to international concert events organized by his friend to assist him with electrical work. The events were in tropical vacation settings and were likely very enjoyable. If he was in fact paid cash for this work, it is not reflected in his tax returns. Further, these events provide evidence of his ability to work as an electrician outside of his union which contradicts his position at trial.

[59] This is a textbook case of intentional underemployment.

[60] The pandemic impact raised by the father is not credible as a barrier to his full-time employment as of October 1, 2021.

[61] The court finds that the father could have been working full time at $86,380.00 per year starting on October 1, 2021. It will impute this income and will change the existing order accordingly.

[62] The guidelines table amount for one child at an annual income of $86,380.00 is a payment of $804.00 each month.

Part Seven – Extraordinary Expenses

[63] An order for contribution to special and extraordinary expenses under s. 7 of the guidelines is discretionary as to both entitlement and amount.

[64] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under s. 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See Park v. Thompson, [2005] O.J. No. 1695 (OCA).

[65] The court has the discretion to apportion the s.7 expenses in a different manner than pro-rata to incomes, depending on the circumstances of the case. Salvadori v. Salvadori, 2010 ONCJ 462, [2010] O.J. NO. 4425 (OCJ); Buckley v. Blackwood, 2019 ONSC 6918.

[66] The mother provided evidence that her daughter’s gymnastic fees are currently $420.00 per month or $5,440.00 per year including the registration fee. She is in a competitive gymnastics program.

[67] The mother’s evidence is that she has paid for the program from 2020 to date at a total cost of approximately $11,414.00. The father has not contributed to this expense.

[68] The mother’s 2021 Notice of Assessment reflects an annual income of $103,209.00. Her 2022 Notice of Assessment reflects an annual income of $145,061.00.

[69] The first step for the court to consider is whether the cost of the gymnastics is more than the recipient can reasonably be expected to afford, taking into account her income and the table amount of child support she receives.

[70] In the case before the court, this expense is sufficiently significant that I find that it is more than the recipient can reasonably be expected to afford. It is an extraordinary expense.

[71] The second step is for the court to consider if the expenses are necessary in relation to the child’s best interests and reasonable in relation to the means of the spouses and the child and the spending pattern of the family prior to separation.

[72] No evidence was led with respect to the specifics of the gymnastic program and this child’s personal goals as they relate to gymnastics. This level of gymnastic participation was not part of the spending pattern of the family prior to separation.

[73] However, this child’s qualification for the elite program is evidence of her ability and commitment to gymnastics. Her ability to progress at her age is directly tied to the intensity (and therefore expense) of her program.

[74] I therefore find that the expense is reasonable and necessary.

[75] Accordingly, the parties will share the costs of this expense on a proportionate basis from the presumptive start date of the change in support of October 1, 2021.

Part Eight – Conclusion

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

a) The existing order shall be changed to provide that, starting on October 1, 2021, the father shall pay child support to the mother of $804.00 each month. This is the guidelines table amount for one child based on an imputed annual income to the father of $86,380.00. b) The parties shall each pay their proportionate share of extraordinary expenses starting on October 1, 2021. c) The father shall pay any arrears generated by this order at a rate of $100.00 per month. d) Nothing in this order precludes the Director of the Family Responsibility Office from collecting support arrears from any government source (such as HST or income tax refunds) or from any lottery or prize winnings. e) A support deduction order shall issue. f) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year.

[77] If either party seeks costs, they may serve and file written submissions by July 28, 2023. The other party will then have until August 10, 2023, to respond in writing (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any offer to settle or bill of costs.

Released: July 12, 2023

Justice D. Szandtner