Ontario Court of Justice

Date: 2023 01 20 Court File No.: Toronto D31587/19

Between:

T.B. Applicant

— AND —

O.T. Respondent

Before: Justice D. Szandtner

Heard on: November 17, 2022 Reasons for Judgment released on: January 20, 2023

Counsel: Ayesha Hussain, for the applicant O.T., self-represented

SZANDTNER J.:

Part One – Introduction

[1] The issues before the court in this trial are the following:

(1) Is retroactive child support payable? If so, when should it commence and what is the appropriate amount owed?

(2) What is the appropriate amount of arrears owing and ongoing child support payable?

[2] The applicant mother was represented by counsel. The respondent father was self-represented. Both parents testified and were cross-examined. They did not call any additional witnesses.

Part Two – Background Facts

[3] The applicant mother is T.B. (“the mother”). The respondent father is O.T. (“the father”). They met in Khartoum, Sudan. They were married in January of 2006.

[4] The parties have three children; A.A. who is 16 years of age, A.A. who is 12 years of age and E.A. who is 6 years of age.

[5] On March 17, 2017, the family arrived in Canada claiming refugee status.

[6] The parties had separated by 2019. The parties do not agree on the year this separation occurred. The mother asserts that it was in July 2018 and the father asserts that it occurred in July 2019.

[7] The mother filed the within application on December 11, 2019 seeking child support from the date of separation, sole decision-making responsibility for the children, a no access order to the father, dispensations of consent for travel and government documents and a non-removal order.

[8] The first appearance was held on March 5, 2020. The father was provided with an extension to serve and file his materials by April 24, 2020.

[9] On December 2, 2020 a case conference was held. The father did not attend but his counsel was present. The father was noted in default for the issues related to decision-making responsibility. The father was granted a further extension to serve and file his Answer related to child support and parenting time to December 31, 2020. Justice Sager made a without prejudice temporary order for the father to pay child support to the mother commencing December 1, 2020 in the amount of $500.00 per month based on an annual income of $24,000.00.

[10] On February 5, 2021, a case conference was held. Justice Sager made a temporary parenting time order providing that the father was to have parenting time every Saturday from 10:00 am to 1:00 pm.

[11] On April 8, 2021, an adjournment was granted to permit the parties to participate in a legal aid settlement conference.

[12] The father failed to attend the parenting time granted by the temporary order.

[13] On January 10, 2022, Justice Sager made the following final orders based on a 23C affidavit filed by the mother:

(1) Final decision-making responsibility for the children to the mother;

(2) Final order that the mother may apply for government documentation without the consent of the father;

(3) Final order that the mother or her designate may travel with the children outside of Canada for vacation purposes without the consent of the father.

[14] On January 12, 2022, a case conference was held. The father was self-represented. Justice Sager ordered him to provide the following disclosure 14 days prior to the next court date of March 18, 2022:

(1) 2020 and 2021 Income Tax Returns

(2) 2020 Notice of Assessment

(3) 2021 Notice of Assessment (if available)

(4) Proof of his income to date in 2022; and

(5) An updated sworn financial statement.

[15] The father provided the mother with his Notices of Assessment for 2020 and 2021 but did not provide his Income Tax returns.

[16] On June 30, 2022 a case conference was held. Justice Sager dismissed the father’s claim for parenting time as abandoned as the he had not taken any steps in the last 2.5 years to initiate contact with the children.

[17] A trial was scheduled to address the remaining issues of retroactive and ongoing child support.

Part Three – The Mother’s Position and Evidence

[18] The mother is seeking the following:

(1) Child support during the period from January 1, 2019 to December 31, 2021, based on an annual income of $24,000.00 at the rate of $500.00 per month;

(2) Child support during the period from January 2, 2022 – July 31, 2023 in the amount of $645.00 based on an annual minimum wage income of $31,200.00;

(3) Ongoing child support commencing August 2023 in the amount of $805.00 per month based on an annual imputed income of $40,000.00 per annum.

[19] The mother’s evidence is that she ended the relationship with the father on or about July 2018. She was attending college at the time while the father was at home with the children. In July of 2018, her eldest child disclosed to the mother that she had been sexually assaulted by the father. The mother confronted the father who denied the allegation. She did not believe the father and asked him to leave the home.

[20] The mother stated that the following day, the parties attended the mosque and finalized a religious divorce. The father left the family home. The mother did not report the alleged assault to the police at the time as her daughter did not want to disclose the incident.

[21] The mother stated that two months after the incident the father disclosed the allegation to a counsellor at COSTI. The counsellor reported the incident to the Children’s Aid Society. The Society reported the incident to the police. In September of 2019, the police charged the father with sexual assault.

[22] A restraining order was in place between the child and the father following the criminal charges. On August 8, 2022, the father was acquitted of all charges after a criminal trial and the restraining order was lifted.

[23] The mother testified that the father is a mechanical engineer by profession. He was trained in the Sudan. He ran his own auto mechanic repair shop in the Sudan. He has work experience in Canada as a mechanic and as an Uber driver. She testified that pre-pandemic he was working approximately 8 hours a day for Uber and earning approximately $4,000.00 per month. He was the sole support for the family.

[24] The mother stated that the father is healthy. It is her position that he is intentionally unemployed in order to avoid his child support obligations.

[25] The mother stated that the father has not made any consistent effort to pay child support since the separation. She stated that he made the following voluntary payments: February 2021 ($250.00), May 2021 ($200.00), July 2021 ($100.00) and August 2021 ($100.00) for a total of $650.00.

[26] The mother admitted that the father paid the family apartment’s rent for four months in 2019 (July – December) but claimed that she contributed the child tax benefit funds ($1500.00 per month) towards the family rental cost. She stated that in January of 2020, the building manager notified her that the father had stopped making the rental payments.

[27] The mother did not provide any evidence that she sought additional financial support from the father during the period in which he was paying the family’s rent.

[28] The mother testified that the father removed himself from the family’s refugee application of his own accord. She and the children now have permanent resident status.

[29] The mother is currently a full-time student at college. She also carries out part-time food deliveries for Uber.

Part Four – The Father’s Position and Evidence

[30] The father’s position is that his child support payable should be $150.00 per month going forward. The father is currently unemployed. He explains his lack of employment following the separation with reference to the impact of COVID on his Uber business and his inability to renew his work permit due to the criminal charges. His explanation for his current lack of employment is that he is waiting for a new work permit.

[31] The father seeks credit for the 2019 payments he made towards the family’s rent, the payments he claims he made towards the mother’s car insurance and the 2021 payments of child support.

[32] The father admitted that he did not comply with the temporary without prejudice child support order for $500.00 per month made by Justice Sager.

[33] The father testified that he has a diploma in mechanical engineering from the Sudan. He worked part time in Sudan before the family came to Canada as a service advisor in a Toyota dealership. He confirmed that he was in good health.

[34] The father stated that his relationship with the mother began to deteriorate in the fall of 2018 when she began her college studies. The mother began to request a divorce in May of 2019. The father suspected that the mother was involved with another man.

[35] The father testified that the parties separated and he moved out of the family home on July 22, 2019, one year after the mother claims the parties separated. He stated that he left the home at the request of the mother. He cooperated with the mother’s request for a religious divorce which was formalized on July 28, 2019.

[36] The father confirmed that his COSTI worker Ms. A. contacted the police in September 2019 with respect to his alleged assault of his daughter. He denied that he ever disclosed that he assaulted his daughter to Ms. A. He denied that the sexual assault occurred. He believes that the false allegation was invented by the mother to prevent him from seeing the children following the separation. He stated that Ms. A. is a close friend of the mother.

[37] The father stated that he paid the family’s rent from July to December 2019. He also stated that he paid the mother’s car insurance for three months for a total of $900.00. He claims that he pays $25.00 per month for his daughter’s phone.

[38] The father stated that he removed himself from the family refugee application at the request of the mother. He is taking independent steps towards permanent resident status and is currently seeking a work permit.

[39] The father’s tax documentation reflects the following:

(1) 2019 Notice of Assessment - $22,559.00 income

(2) 2020 Notice of Assessment - $23,349.00 income

[40] The father stated that he worked for Uber full time prior to December 2019. However, he has been unemployed since December 17, 2019. He explained that the pandemic and his lack of a work permit have made it impossible for him to work since that time.

[41] His evidence is that he received Canadian Emergency Recovery Benefits (“CERB”) commencing in March 2020 of $2000.00 per month. These benefits were paid to him until October 2021.

[42] His financial statement sworn December 15, 2022 reflects that he earned $18,500.00 in 2021. This is supported by a T4A slip for this amount in CERB.

[43] The father’s evidence is that he has been in receipt of Ontario Works at $733.00 per month since his CERB was terminated in 2021. He describes himself as unable to pay child support during this period and borrowing money to survive.

[44] Under cross-examination, the father agreed that he prioritized the payment of overdue bills to the 407 ETR before paying child support during the period that he was in receipt of CERB.

[45] The father testified that he was unable to renew his work permit due to the criminal charges related to the alleged assault of his daughter that were pending from September 2019 until August 8, 2022. He did not provide documentary evidence of the work permit’s expiration.

[46] The father stated that he applied for a new work permit in November of 2022. He provided no documentary evidence to support this claim.

[47] The father provided the following documents as evidence in support of his position at trial:

(1) A Divorce Certificate dated July 28, 2019.

(2) An Information which reflects the sexual assault charge on September 24, 2019 and his acquittal on August 8, 2022.

(3) Copies of TD cheques for July, August, September, October, November, December 2019 made out to Morguard Corporation in the amount of $2580.00 each. These were identified as rent payments for the family apartment.

(4) A car insurance policy summary (November 2019 – November 2020)

(5) A Financial Statement sworn December 15, 2022.

Part Five – Legal Considerations

Issue 1 – What is the start date for child support?

[48] The mother seeks an order that child support be ordered retroactive to January 1, 2019. She filed her application on December 11, 2019 and claims that the parties separated in July of 2018.

[49] The father’s position is that if child support is owing for the period prior to the application, that the child support he paid voluntarily during this period was sufficient.

[50] 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:

(1) In an application under section 22, 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.

[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 the discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel v. Graydon, 2020 SCC 25. 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.

[54] 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.

Analysis

[55] Before the presumptive date of retroactivity can be determined, the date of separation must be established.

[56] The court heard conflicting evidence on the parties’ date of separation. The mother’s evidence is that it was in July of 2018 and the father’s evidence is that it was in July of 2019.

[57] While the date of separation was one year apart, both parties agreed that it occurred shortly before the parties secured a religious divorce. They both connected the timing of their separation to their daughter’s allegation that she was sexually assaulted by the father.

[58] The court was provided with a document identified as a Divorce Certificate signed by both parties dated July 28, 2019.

[59] The court was also provided with the Information reflecting the sexual assault charges laid against the father on September 24, 2019.

[60] The court finds on the evidence that the parties separated in July of 2019, not July of 2018.

[61] This creates a potential period of retroactive child support from July 2019 to December 11, 2019, the date of the application and the date of formal notice.

[62] The court must determine the presumptive date of retroactivity by considering the evidence of effective notice at trial. Effective notice requires only that the recipient broached the subject of an increase with the payor.

[63] The facts of this case reflect monthly payments by the father towards the apartment’s rent. The father states that he paid the entire amount of $2580.00 per month from July – December 2019. The mother acknowledges the payment to the rental company but maintains that she contributed the monthly child tax benefit by paying $1500.00 per month directly to the father. At a minimum, this is undisputed evidence of a monthly payment of $1080.00 from the father to support the children for the July – December 2019 period.

[64] There is no evidence before the court that the mother asked for additional financial support from the father from July 2019 up to the date of her application.

[65] The court finds that the date of effective notice and the date of formal notice are one in the same. The presumptive date of the start of support is December 11, 2019.

[66] The court must further consider whether or not it should depart from the presumptive date where the result would otherwise be unfair. The court must consider the evidence of the father’s conduct, any undue hardship and the circumstances of the children during this period in order to make this determination.

[67] The father was residing outside of the family apartment following the separation in the summer of 2019. He paid the family’s rent in a timely manner. His financial contribution to the children’s rental cost was corroborated by the mother was $1080.00 per month. There is no evidence of blameworthy conduct on the part of the father from a financial perspective. His actions permitted the children to continue to reside in the family residence mitigating the hardship that might have immediately flowed from the separation. His financial contribution was significant and stands in place of child support for this time period.

[68] The court finds that the presumptive date of retroactivity (December 11, 2019) does not generate an unfair result on the facts of this case. No retroactive support is payable. December 11, 2019 is the appropriate start date for the payment of child support.

Issue 2 – What is the level of child support arrears and ongoing child support owed?

[69] Section 19 of the Child Support Guidelines (“CSG”) provides that the court may impute to a spouse such amount of income as it considers appropriate in the circumstances. The circumstances specified include the following:

(1) 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;

(2) The spouse has failed to provide income information when under a legal obligation to do so.

[70] 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. Smith v. Pellegrini, 2008 ONSC 46927, [2008] O.J. No. 3616 (Ont. S.C.).

[71] The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v. Carriere, 2016 ONSC 4719.

[72] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. Drygala v. Pauli, 2002 ONCA 41868, [2002] O.J. No. 3731, Ont. C.A.

[73] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663.

[74] The court stated in Drygala that 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 he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[75] The courts have specifically considered the impact of a criminal record or criminal charges on employment income. Where the criminal record or charge can be characterized as creating a self-induced barrier to employment income the court did not reduce the child support obligation by the payor. Rogers v Rogers, 2013 ONSC 1997.

Analysis

[76] The mother’s claim for ongoing child support can be divided into three different time periods:

(a) Pre-Pandemic and Receipt of CERB (December 11, 2019 – October 1, 2021)

(b) Receipt of Ontario Works (October 1, 2021 – September 1, 2022)

(c) Post Criminal Charges (September 1, 2022 – ongoing)

Pre-Pandemic and Receipt of CERB (December 11, 2019 – October 1, 2021)

[77] The mother testified that prior to separation the father was the sole support of the family through his earnings as an Uber driver. She stated that he worked full time and earned approximately $4000.00 per month during their relationship.

[78] The father’s evidence is that he became unemployed in December of 2019 due to the impact of the criminal charges on his ability to be legally employed as an Uber driver.

[79] Given that the father was tried and acquitted for these charges on August 8, 2022, this case can be distinguished from cases in which the payor’s own misconduct led to a self-induced earning limitation. The father can therefore rely on the criminal charges as creating a limitation on his ability to be legally employed by Uber until he was acquitted.

[80] The court does not expect him to have supplemented his CERB income as a driver operating illegally during this period. Further, there is no evidence before the court that he was earning income by operating illegally as an Uber driver during this period.

[81] From March 2020 to October 1, 2021, the father stated that he was in receipt of CERB at a rate of $2000.00 per month. The mother is seeking guideline child support for this period that is based on his receipt of this benefit.

[82] The father’s receipt of this government benefit makes the calculation of the amount owing for this period reasonably simple. Under the CSG, the father would owe $500.00 per month for three children. Given that he received the CERB benefits for 19 months, this generates a total owing of $9500.

[83] The court finds that the father should be given credit for the rental payment in 2019 ($1080.00) and the payments made in 2021 towards child support totalling $650.00 that are corroborated by the mother.

[84] The arrears owing by the father for this period totals $7,770.00.

Receipt of Ontario Works (October 1, 2021 – September 1, 2022)

[85] During this period of time, the father stated that he was receiving $733.00 per month under the Ontario Works program. This modest income would not generate a child support payment owing under the CSG.

[86] The father explained that the outstanding criminal charge impeded his ability to secure a work permit and to work legally as an Uber driver.

[87] The mother seeks to impute income to the father during this time period, alleging that he was intentionally under-employed.

[88] The father provided evidence of his receipt of the Ontario Works benefit. He also provided evidence to the court of the criminal charges that he faced from September 2019 to August 8, 2022.

[89] The court finds as a fact that these criminal charges would have affected the father’s ability to legally drive for a ride-share company prior to their resolution. Given his ultimate acquittal, this is not a self-induced limitation on his earning capacity.

[90] The court will not impute income that would be obtained by operating illegally. In this case there is no evidence of illegal earnings.

[91] Accordingly, no child support is owed to the mother for this period.

Post Criminal Charges (September 1, 2022 – ongoing)

[92] On August 8, 2022, the father was acquitted of his criminal charges. The court finds that on that date the barrier to his Uber employment and work permit application was removed.

[93] It is reasonable to grant the father a grace period until January 1, 2023 to secure his work permit and rejoin the Uber workforce.

[94] The mother estimates that the father earned an annual income of $48,000.00 to support the family prior to separation. The father did not provide any evidence of his pre-pandemic Uber earnings.

[95] The court will deduct a reasonable amount from this estimate for a driver’s work-related expenses. It will impute an annual income of $35,000.00 to the father as of January 1, 2023. This imputed annual income generates a monthly payment owing to the mother of $718.00 under the CSG. The father owes the mother $718.00 per month on an ongoing basis.

Part Six – Conclusion

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

(a) Based on an annual imputed income of $35,000.00 the father shall pay child support to the mother of $718.00 per month commencing January 1, 2023. This is the guidelines table amount for three children.

(b) The father’s child support arrears are fixed at $7,770.00 to date, as calculated in this decision. The father may pay the arrears at $200.00 each month, starting February 1, 2023. However, if he is more than 30 days late in making any ongoing or arrears payment, the full amount of arrears then owing shall immediately become due and payable.

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

(d) Support Deduction Order to issue.

(e) The father shall provide the mother with complete copies of his income tax returns, including all attachments and schedules, as well as the complete corporate returns of any business he operates, and his Notices of Assessment by June 30th each year, starting in 2023.

(f) The balance of the claims of the parties are dismissed.

[97] If either party seeks costs of this trial they shall serve and file written submissions by February 10, 2023. The other party will then have until February 20, 2023 to serve and file their written response (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any offer to settle or bill or costs. The costs submissions should be delivered to the trial coordinator’s office.

Released: January 20, 2023 Signed: Justice Szandtner