Court File and Parties

Date: November 15, 2024 Court File No.: D44704/243 Ontario Court of Justice

Between:

MELISSA WRIGHT, Applicant Janet Daby, for the Applicant

- and -

JERMAINE JAMES, Respondent Acting in Person

Heard: November 13, 2024

Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This trial was about the respondent’s (the father’s) child support obligations for the parties’ two children, ages 9 and 3 (the children).

[2] The applicant (the mother) seeks child support retroactive to October 1, 2021 in accordance with the father’s annual income and the Child Support Guidelines (the guidelines). She proposed that the father pay support arrears at $250 each month.

[3] The father submits the court should not make a retroactive support order. He seeks an order that he pay child support to the mother of $600 each month starting on December 1, 2024. This is an amount far below the guidelines table amount based on his annual income. He submitted he is willing to pay more when the mother makes specific requests for him to buy items that the children need. If a retroactive support order is made, he asks to pay arrears at $100 each month.

[4] On September 23, 2024, the parties reached a comprehensive agreement regarding the parenting issues, the payment of special and extraordinary expenses (section 7 expenses) and health benefits. This consent was incorporated into a final order dated the same day. The order sets out that the children will reside primarily with the mother and that she has decision-making responsibility for them. The father has a structured parenting time schedule with them.

[5] Only the parties testified at this trial. The parties filed affidavits and updated financial statements for their direct evidence. They were both cross-examined.

[6] The issues for the court to determine are as follows:

a) What is the presumptive start date for child support? In determining this date, the court must determine the dates of formal notice and effective notice of the mother’s claim for support.

b) Should the court depart from the presumptive start date, and if so, when should support start?

c) How much child support should the father pay the mother for each year he is required to pay support?

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

e) How should any arrears of child support be paid?

Part Two – Background facts

[7] The mother is 35 years old. The father is 41 years old.

[8] The parties cohabited from October 2014 until January 2020. They continued to have an on and off relationship until September 23, 2021. They had the two children together.

[9] The children have always resided with the mother.

[10] The mother worked in customer service until she was laid off in 2022. She has remained at home to care for the parties’ youngest child. She hopes to return to work in September 2025. She is in receipt of social assistance.

[11] The father has been employed as an appliance salesman for the past five years. He testified he has another child, who is 14 years old. He said he has paid that child’s mother $300 each month for child support for about 10 years. He stated he and that child’s mother have no court order or separation agreement between them. He did not provide any proof of making these support payments.

[12] The mother issued this application on December 29, 2023.

[13] The father issued his Answer/Claim on February 21, 2024.

[14] On March 26, 2024, the parties consented to temporary parenting and support orders. The father agreed to pay temporary child support of $960 each month, starting on April 1, 2024, based on an annual income of $63,000.

[15] On May 17, 2024, the parties consented to a temporary order changing the parenting and support orders. Based on an annual income of $68,444, the father agreed to pay child support to the mother of $1,042 each month, starting on June 1, 2024.

[16] The parties finalized the parenting, section 7 expenses, and health benefit issues regarding the children on September 23, 2024. The court also organized this focused hearing on that date.

Part Three – Start date for child support

3.1 Legal considerations

[17] The mother served her application on the father in January 2024. Support since that date is prospective support and is presumptively payable. See: Mackinnon v. Mackinnon. The support claimed by the mother before that date requires a retroactive support analysis.

[18] 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

(1) In an application under section 33, the court may make an interim or final order,

…….(f) requiring that support be paid in respect of any period before the date of the order;

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

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

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

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

d. The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. 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.

[20] This framework in Colucci addressed 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.

[21] In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors [^1] 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. See: L.S. v. M.A.F., 2021 ONCJ 554; M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189; M.K. v. K.M., 2022 ONCJ 424; T.B. v. O.T., 2023 ONCJ 35; V.S.B. v. B.L.O., 2022 ONCJ 506; Mohamoud v. Farah, 2023 ONCJ 103.

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

[23] Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so. See: Michel – par. 132.

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

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

3.2 What is the presumptive start date to change support?

[26] The first step in the Colucci framework is to determine the presumptive start date for support to be changed. To determine this, the court must look at when effective notice and formal notice was given by the mother to the father.

[27] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair. See: D.B.S., par. 121.

[28] The mother deposed she sought support from the father in either November or December of 2021. The father did not dispute this. He testified he has always paid child support and has given the mother money when she asks for it.

[29] The court finds the date of effective notice was December 1, 2021. This date is not more than three years prior to the date of formal notice, in this case being the date of the application. Accordingly, the presumptive start date for support to begin is December 1, 2021.

3.3 Should the court depart from the presumptive start date?

[30] The second step in the Colucci framework is to determine if the court should depart from the presumptive start date. The court will review the legal considerations and evidence regarding delay, conduct, the circumstances of the children and hardship below.

3.3.1 Reasons for delay

[31] In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support. See: Michel, par. 121.

[32] A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, par. 113.

[33] Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. See: Michel, par. 86.

[34] In Michel, the court, at paragraph 86, set out what might be understandable reasons for delay in a support recipient coming to court as follows:

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.

j) The deliberate delay of the application or the trial by the payor.

[35] The mother attested that the father failed to advise her about the income he was earning. The father stated the mother always knew what he was earning.

[36] The mother was more credible than the father. It was informative that in her application she only sought to impute a minimum wage annual income to the father for support purposes. She would not have sought such a low level of support if she had known the father was earning more than twice that amount.

[37] The father’s evidence was often inconsistent during the trial. This negatively impacted his credibility. For example, he testified that the mother does not want to admit that they have a great relationship and that, “we talk and laugh all the time”. He said, “I did not feel the need to drag her through the mud”. However, in his trial affidavit he frequently attacked her. [^2] He deposed that:

a) The mother’s claim for retroactive support demonstrates emotional abuse.

b) The mother is emotionally abusive and extremely vindictive when she does not get her own way.

c) The mother argues just for the sake of arguing.

d) The mother takes every opportunity to make me feel like less of a parent instead of an equal.

e) The mother used to bombard me with phone calls to try and dictate what happens in my home.

f) The mother has not disclosed a business she is running.

[38] The court finds that the mother provided understandable reasons for her delay in bringing her application for child support, including:

a) The father failed to notify her about his actual income. She did not have the necessary information to properly assess if she should have come to court earlier. The court accepts her evidence that the father frequently complained about his debts and expenses and his struggles to pay child support. She thought he was earning much less income.

b) She provided credible evidence about how difficult the father is to communicate with. She provided abusive texts sent to her by the father.

c) The father presented at trial as having a controlling personality who quickly gets upset when he does not get his own way. He was distressed that the mother was seeking child support in accordance with his income, when in his opinion, he fully supports his children. He is paying far less than guidelines table support for his other child and expects the mother to similarly agree to a reduced payment.

d) The father entered into two temporary support agreements. He has not come close to paying the agreed-upon amounts. For the first time at trial, the father claimed he did not understand what he had signed. This defied belief. He made multiple hand-written changes to both agreements. He signed both agreements in front of duty counsel. This willingness to redefine reality to suit his purposes was another indicator of how difficult he is to deal with. The mother’s reluctance to engage in litigation with him was understandable.

3.3.2 Blameworthy conduct

[39] Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.

[40] Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., par. 106.

[41] The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. See: Michel, par. 34.

[42] The father has engaged in blameworthy conduct as follows:

a) He failed to advise the mother of his actual annual income.

b) He failed to pay child support payments in amounts anywhere close to what he should have been paying. He knew or ought to have known he was seriously underpaying child support.

c) He is in default under the temporary support orders.

3.3.3 Circumstances of the children

[43] The children’s circumstances have been disadvantaged due to the father’s failure to pay adequate support. The mother and the children are on social assistance. The mother has been unable to afford tutoring for the older child and extra-curricular activities for both children.

3.3.4 Hardship

[44] If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. In all cases, hardship may be addressed by the form of payment. See: Michel, par. 124.

[45] 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. See: Michel, par. 125.

[46] The court considered that the father has received a sizeable financial windfall due to his failure to pay adequate child support.

[47] The father provided no evidence that a retroactive support order will cause him hardship that cannot be addressed by making a payment order for the arrears. He acknowledged he spends $450 each month on entertainment and gifts and $400 each month on vacations. He said he spends $1,663 each month on his Audi vehicle. Yet, he only paid an average of about $219 each month for child support to the mother after October 1, 2021. [^3]

[48] The mother will suffer hardship if a retroactive support order is not made. She needs this support to assist in removing herself and the children from social assistance and to meet the children’s needs.

3.3.5 The start date for support

[49] The court finds it is fair to depart from the presumptive start date and will start support on October 1, 2021, as requested by the mother.

3.4 Quantification of support

[50] The third and final step in the Colucci analysis is to quantify the proper amount of support for each year since the start date of retroactivity, calculated in accordance with the guidelines.

[51] The father is a T4 employee. His income in 2021 was $83,085. The guidelines table amount for two children at this income was $1,256 each month. Support accrued for 3 months in 2021, for a total of $3,768.

[52] The father earned $82,661 in 2022. The guidelines table amount for two children at this income was $1,250 each month. Support accrued for 12 months, for a total of $15,000.

[53] The father earned $68,444 in 2023. The guidelines table amount for two children at this income was $1,042 each month. Support accrued for 12 months in 2023, for a total of $12,504.

[54] The father provided a 2024 year-to-date pay stub showing gross income of $62,490 as of October 11, 2024. This projects to an annual income of $78,935 ($62,490 divided by 9.5 months x 12 months). This is the best evidence of his 2024 income. The guidelines table amount for two children at this income is $1,194 each month. Support has accrued for 11 months in 2024, for a total of $13,134.

[55] The total table amount of support accrued since October 1, 2021, is $44,406 ($3,768 plus $15,000 plus $12,504 plus $13,134).

3.5 Credits

[56] The mother prepared a list of support payments, totaling $7,140, that she said the father has paid her since October 1, 2021. The father agreed this amount was close to what he has given to her. The mother said the father also gave her some cash and bought some children’s clothes for her. She estimated the value of this at about $800. The father felt the amount was closer to $1,200. In closing submissions, the mother agreed to the court allowing the credits claimed by the father.

[57] The father will be credited with support payments of $8,340 since October 1, 2021 ($7,140 plus $1,200). [^4] The arrears owing, as created by this order, are $36,066 ($44,406 - $8,340).

3.6 Payment of Arrears

[58] The mother proposed that the father pay the arrears created by this order at $250 each month. The father asked the court to order payment at $100 each month. Given the large amount of arrears, the mother’s proposal is more reasonable. She is giving the father twelve years to pay them.

[59] The father is a reluctant support payor. The court will permit him to pay the arrears at the low rate sought by the mother if he maintains his ongoing and arrears support payments in good standing. If he is more than 30 days late in making any arrears or ongoing support payment, the entire amount of arrears then owing shall immediately become due and payable.

Part Four – Conclusion

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

a) The father owes the mother $36,066 for child support arrears, as calculated in this decision.

b) The father may pay the arrears at $250 each month, starting on December 1, 2024. However, if he is more than 30 days late in making any arrears payment or ongoing support payment, the entire amount of arrears then owing shall immediately become due and payable.

c) The father shall pay the mother ongoing child support of $1,194 each month, starting on December 1, 2024. This is the guidelines table amount for two children, based on the father’s annual income assessed at $78,935.

d) The parties shall exchange their complete income tax returns and notices of assessment by June 30th each year. [^5]

e) Nothing in this order precludes the Director of the Family Responsibility Office from collecting arrears from any government source (such as income tax or HST returns), inheritances, or lottery or prize winnings.

f) A support deduction order will issue.

[61] It is concerning that the Director of the Family Responsibility Office has not started collecting support from the father’s pay cheques, despite the first temporary support order being made on March 26, 2024. [^6] To ensure that collection is expedited court staff is directed to send a copy of these reasons for decision and the support deduction order to the legal department of the Director of the Family Responsibility Office.

[62] The mother is entitled to her costs of this application. She may serve and file written costs submissions by November 29, 2024. The father will then have until December 13, 2024, to make a written response. The costs submissions should not exceed three pages, not including any offer to settle or bill of costs. The submissions should be delivered to the trial coordinator’s office on the second floor of the courthouse or emailed to the trial coordinator at.

Released: November 15, 2024

Justice Stanley B. Sherr

Footnotes

[^1]: See: D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. These factors 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.

[^2]: The court is listing these allegations to demonstrate the inconsistencies in the father’s evidence. None of these allegations were supported by the evidence.

[^3]: The calculation of this amount will be set out later in this decision.

[^4]: Averaged out over 38 months, this comes to $219 each month for the two children.

[^5]: The mother is also required to annually provide her income tax returns and notices of assessment because the September 23, 2024 court order requires the parties to share section 7 expenses in proportion to their incomes.

[^6]: This could be due to a court error or an administrative delay at the Director of the Family Responsibility Office. However, it is important this issue be addressed right away.