Ebba v. Sheriff Jalloh, 2025 ONCJ 127

DATE: March 6, 2025
COURT FILE NO.: D4445/23
ONTARIO COURT OF JUSTICE

B E T W E E N:

DAWANE EBBA
Natalia Denchik, for the APPLICANT
APPLICANT

• and -

ISHMAEL MOHAMED SHERIFF JALLOH
Kristy A. Maurina, for the RESPONDENT
RESPONDENT

HEARD: March 4, 2025
JUSTICE: Stanley B. Sherr

REASONS FOR DECISION

Part One – Introduction

[1] This focused hearing was about the respondent’s (the father’s) child support obligations for the parties’ three children, ages 16, 14 and 7 (the children).

[2] The applicant (the mother) seeks an order that the father pay her child support starting on July 1, 2010. She seeks to impute annual minimum wage income to him for each year support is ordered. She also seeks a retroactive contribution to the children’s special and extraordinary expenses (section 7 expenses), pursuant to section 7 of the Child Support Guidelines (the guidelines).

[3] The father asks that his child support obligations be calculated starting on October 3, 2023. This is when the mother issued this application. He asks to pay support in accordance with his reported annual income to the United States tax authorities.

[4] The father recognizes that there will be child support arrears. He asks to pay the arrears at $300 each month, together with an annual lump sum payment of $2,000. The mother asks that any support arrears be paid at $1,000 each month.

[5] The parties previously resolved all parenting issues in this case.

[6] The parties were the only witnesses at trial. They filed affidavits and financial statements and were cross-examined.

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

a) What is the presumptive start date for child support?
b) Should the court depart from the presumptive start date, and if so, when should support start?
c) What is the father’s annual income for each year he is required to pay child support? Should income be imputed to him in any of these years, and if so, how much?
d) What, if any, contribution should the father make to the children’s section 7 expenses?
e) How should any support arrears be paid?

Part Two – Background facts

[8] The parties are both 44 years old.

[9] The parties began living together in 2006. They disagree about when they separated. The mother says they separated in June 2010. The father says they reconciled and separated for the final time in June 2018.

[10] The parties have the three children together.

[11] The children live with the mother in Toronto.

[12] The father lives in Maryland, in the United States.

[13] The mother issued this application on October 3, 2023, seeking parenting and support orders. In her application, she sought child support retroactive to January 1, 2020.

[14] On March 18, 2024, the mother asked to find the father in default as he had not served any responding materials. The father sought an extension of time to serve and file his materials. The court granted him an extension on terms, including that he pay temporary child support of $707 each month, starting on April 1, 2024, based on an imputed minimum wage income of $34,400. This was subject to adjustment at trial. The court also ordered him to pay the mother’s costs fixed at $1,500.

[15] The father served and filed his responding materials on April 16, 2024.

[16] On April 24, 2024, on consent, the mother was granted final decision-making responsibility for the children and other incidents of decision-making responsibility. A temporary order was made for the father to have supervised parenting time at Access for Parents and Children in Ontario.

[17] The father was unable to exercise this parenting time because he is not allowed to cross the Canada/United States border. There may be an outstanding warrant for his arrest in Canada arising out of an assault allegation made by the mother against him in 2018. Little information was provided to the court about this.

[18] On September 3, 2024, on consent, a final order was made that the father have virtual parenting time with the children, subject to their views and wishes. The mother orally moved that day to strike the father’s Answer/Claim for his failure to provide financial disclosure, pay costs and child support. The court adjourned the motion to give the father the chance to comply with the court orders.

[19] On October 31, 2024, for oral reasons given, the court dismissed the mother’s motion to strike the father’s Answer/Claim. The court also organized and scheduled this focused hearing. The mother’s application was orally amended to claim child support retroactive to July 1, 2010.

[20] The father subsequently sought an adjournment of the trial to retain counsel. This was opposed by the mother. On December 18, 2024, the court granted the adjournment, peremptory on the father. The court ordered that the mother was presumptively entitled to her costs thrown away.

[21] At the outset of the trial, the mother again orally moved to strike the father’s Answer/Claim. The court dismissed that request and proceeded with the trial.

Part Three – The parties’ narratives

[22] The parties had starkly contrasting narratives about their relationship, the father’s involvement with the children and the extent to which the father has financially supported the children.

[23] The mother’s narrative can be summarized as follows:

a) She has always been the children’s primary caregiver.
b) The father has never participated in the children’s lives, both during their cohabitation and after their separation. He only visited the children sporadically.
c) The father was abusive to her and the children.
d) The father threatened to throw the children from the balcony on June 6, 2010. The mother reported this to the police the next day. This led to their separation.
e) On June 5, 2018, the father threatened to kill her. He also threatened to throw the children off the balcony. She said the father has been criminally charged and this is why he cannot enter Canada.
f) The father has not paid a penny of child support since June 7, 2010. He has not made any support payments pursuant to the temporary support order. He has not paid the costs order.
g) She made many requests for the father to pay her child support.

[24] The father’s narrative can be summarized as follows:

a) He was very involved in raising the children until he separated from the mother in June 2018.
b) He has never abused the mother or the children. He had a good relationship with the children.
c) The mother did not report him to the police in 2010.
d) The parties were in a relationship until June 2018, although they had some periods of separation. After June 2010, they had two more children together and the mother was pregnant with a further child by the father, which she miscarried in 2015.
e) Two of the children lived with him during a period of separation from 2012 to 2013.
f) In late 2013, the mother took the two children from him and relocated to Virginia.
g) He reconciled with the mother in 2014.
h) In 2015, the mother was criminally charged in Virginia for child neglect.
i) In 2015, the family traveled to Canada as the mother’s mother had died. The mother was stopped at the border when she tried to re-enter the United States due to identity issues. She had allegedly crossed the border into Canada under a different name than she used trying to cross back into the United States. She has remained in Canada with the children since then.
j) He sold his business in the United States in 2015 to be with the mother and the children. He primarily lived with them in Canada until the final separation. He used the money from the sale of his business to support the family.
k) He returned to the United States in 2018 to start a new career. He enrolled in a police academy to become a security officer.
l) He frequently traveled to Canada to see the children until the pandemic started in March 2020.
m) He financially supported the children after the separation, paying the mother between $10,000 to $15,000 each year on behalf of the children.
n) The mother uses multiple names and identities. She has asked him to pay support into her accounts using three different names.
o) He stopped paying support in October 2021 when the mother told him not to come to Canada, as she had reported him to the police and social assistance authorities, and he would be stopped at the border.
p) The mother relocated with the children, and he had no idea where they went.
q) The mother has frustrated his relationship with the children.
r) He has tried to pay support and costs ordered by the court. However, the mother and her counsel have been uncooperative in facilitating this.
s) He does security work. Since 2020, he has earned annual income between $10,000 and $24,000, when converted into Canadian dollars. He says he can only work part-time due to having sickle cell anemia.

Part Four – Credibility and reliability

[25] Fact finding in this case was difficult because neither the mother nor the father were reliable or credible witnesses.

[26] The court had the following concerns about the father’s evidence:

a) He often answered questions in a tangential manner and had to be redirected by the court.
b) He engaged in a lot of hyperbole. The court finds he exaggerated the amount of support he paid for the children.
c) He claimed one of the children as a dependant on his 2020 and 2023 U.S. income tax returns even though the child does not reside with him. He explained he can do this in the United States if he is paying support for the child. Even if this is so, he was not paying any child support for the child in 2023.
d) His financial disclosure was produced late, and only after he retained counsel.
e) He provided little evidence of the support payments he claimed to have made.
f) He provided no medical evidence to support his contention that his illness is impairing his ability to work.

[27] The court had even more concerns about the mother’s evidence, including:

a) She would not admit the obvious. This happened several times. For example, she denied that she only sought retroactive support to January 1, 2020 in her application even though that was clearly stated.
b) In her trial affidavit, she claimed that she reported the father’s 2010 assault of her to the police. The mother admitted at trial that this statement was wrong. She did not do this. She reported the father to the Toronto police in June 2018.
c) She deposed that the father threatened to throw the children off the balcony in June 2010. However, they only had one child at the time. The court also accepts the father’s evidence that the parties did not have a balcony at the time.
d) Her allegation about what happened in June 2010 mirrored her allegation about the father assaulting her in June 2018, including his threat to throw the children off the balcony.
e) She provided little detail about other alleged family violence by the father towards her and the children.
f) She claimed that the father did not participate in the children’s lives. This was not true. The father provided credible and detailed evidence regarding his involvement with the children after 2010. The father provided numerous photos of events he attended with the children.
g) She claimed the parties did not reconcile after 2010. This was not credible. They had two children together after 2010 and the mother miscarried a third. The father provided numerous photos of the parties together, in 2015, 2017 and 2018, including one picture of the parties together in bed.
h) She claimed that the father did not pay a penny of support after 2010. She said he never bought the children gifts. This was false. The father provided evidence of some support payments he made and of items he purchased for the children. For example, he provided a text exchange from December 2020 where she asked and he agreed to transfer her funds by Western Union to pay for a dental bill.
i) She claimed she made numerous requests asking the father for support. Despite this, until February 2021, she was only able to produce one text from 2016 alluding to the father not properly supporting the children.
j) She acknowledged that she provided two different identities to authorities crossing the United States/Canada border in 2015, and that is why she has not been permitted into the United States since then. She did not provide a clear explanation as to why she did this.
k) She did not deny the father’s allegation that she has used three different names and has directed the father to pay funds into accounts for each of these names. She used a different name for the birth registration of one of her children born in the United States. The evidence informs the court that she is operating under different names, for unknown purposes.
l) She did not disclose, as required in her Form 35.1 parenting affidavit, that she had been charged with criminal offences regarding one of the children in Virginia. She attested at this trial that she does not know the final outcome of those charges as she was unable to return to the United States after 2015.
m) She accused the father of not paying any child support or the costs order. However, the correspondence between the father’s fiancée and mother’s counsel satisfied the court that the father made several attempts to make payments and the mother provided little cooperation in facilitating this.

Part Five – Findings of contested facts

[28] The court makes the following findings of fact:

a) The mother has always been the children’s primary caregiver.
b) The parties separated and reconciled many times after 2010. They were together, for the most part, between 2015 and 2018 in Canada. At times, the father would go to the United States for part-time work to support the family. He was not eligible to work in Canada. Their final separation was in June 2018.
c) The father was involved in the children’s lives before and after the separation. The father was able to provide details of this involvement as follows:
i) He took the children to their daycare, school, church and the mosque.
ii) He took the children to some of their medical appointments.
iii) He participated in activities with them and took them to the gym. The father is a former boxing instructor.
iv) He assisted the children with their hygiene, fed them, bathed them and put them to bed.
v) He organized birthday parties for them.
vi) He traveled to the United States with them.
vii) He was present at the births of all three children.
d) The father financially contributed towards the children’s needs to the best of his ability until the final separation in June 2018.
e) The mother did not establish, on a balance of probabilities, that the father perpetrated family violence against her or the children.
f) From the final separation in June 2018 until February 2021, the father paid child support and bought items for the children when requested by the mother.[1] However, the court finds he did not pay the $10,000 to $15,000 a year that he claimed.

Part Six – The start date for support

6.1 The Colucci framework

[29] The court’s authority to make retroactive support orders is contained in clause 34(1)(f) of the Family Law Act (the Act). This clause reads as follows:

Powers of court
34 (1) In an application under section 33, the court may make an interim or final order,
…….(f) requiring that support be paid in respect of any period before the date of the order;

[30] Any support claimed after an application is issued is prospective support, not retroactive support and is presumptively payable. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.). The father did not dispute that prospective child support was payable.

[31] In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for retroactive applications to 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[2] continue to guide this exercise of discretion, as described in Michel.[3] 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.

[32] This framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. It should also be applied, with necessary modifications, for an original request for retroactive support. 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; Hajak v. Hemmings, [2024] O.J. No. 4763 (SCJ).

[33] In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 24. 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.

[34] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, para. 25.

[35] Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S., para. 97.

6.2 What is the presumptive start date when child support should start?

[36] The first step in the Colucci analysis is to determine the presumptive start date when child support should start.

[37] The mother claims she repeatedly broached the issue of paying more child support with the father after June 7, 2010.

[38] The father claims that the mother did not broach the issue that the child support he was paying was inadequate until she issued her application on October 3, 2023.

[39] Due to her poor credibility, the court does not accept the mother’s evidence that she made verbal requests for more child support from the father. It requires written corroboration.

[40] The father filed a text dated February 2, 2021 that he wrote to the mother responding to an undated text from her. It appears her text had been sent shortly before the father’s response. In it she writes:

Where is the money????
This is how it is going to be me chasing u for child support? Wow u Acting a fool. U will Regret I’m not losing nothing I will get more…..

[41] The father sent the mother a Western Union payment in response to her text.

[42] The court finds the date of effective notice is February 1, 2021. This is when the mother broached with the father that she was dissatisfied with the support he was paying to her.

[43] The presumptive start date for child support to start is February 1, 2021.

6.3 Should the court depart from the presumptive start date?

[44] The second step in the Colucci analysis is to determine if the court should depart from the presumptive start date.

[45] The mother asks to depart from the presumptive start date. She asks that the start date for child support be July 1, 2010.

[46] The father also asks to depart from the presumptive start date. He asks that the start date for child support be October 3, 2023, when the mother started her application.

[47] The court will consider the departure factors set out in D.B.S., as modified by Michel, below.

6.3.1 Reasons for delay

[48] In considering delay in applying for increased support, 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, para. 121.

[49] 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, para. 113.

[50] 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. 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.:

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.

These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other fear and danger. See: Michel, para. 86.

[51] The mother based her delay for seeking child support on her allegations of family violence. However, she did not prove those allegations on a balance of probabilities. The evidence informs the court that until she was content with the support she was receiving until she sent the father the text on or about February 1, 2021.

6.3.2 Blameworthy conduct

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

[53] 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., para. 106.

[54] The court does not find that the father engaged in blameworthy conduct prior to October 2021.

[55] The court finds that the father engaged in serious blameworthy conduct by not paying any child support after October 2021.

6.3.3 Circumstances of the children

[56] 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. See: Michel, para. 123.

[57] The mother provided no evidence that the circumstances of the children were disadvantaged by the failure of the father to pay child support. However, since he failed to pay any child support after October 2021, it is logical to infer that the mother assumed the entire burden of child support to prevent any disadvantage for the children.

6.3.4 Hardship

[58] 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, para. 124.

[59] 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, para. 125.

[60] The father earns a low income and leads a modest lifestyle. He is being supported by his fiancée. A large retroactive payment will cause him hardship, although this hardship can be reduced by permitting him to pay the arrears over a reasonable period of time.

[61] The mother will suffer hardship if she does not receive retroactive support.

6.3.5 Start date to change child support

[62] The court will not depart from the presumptive start date.

[63] The court finds that the father did not engage in blameworthy conduct before October 2021. The mother appeared to be content, at least until February 1, 2021, with the financial arrangements she had with him. Ordering additional retroactive support beyond the presumptive start date would be an unjustified hardship to the father in these circumstances.

[64] The father paid no child support after October 2021. He was upset that the mother was frustrating his contact with the children and had started a criminal process against him. These are not valid reasons for not supporting your children. The children should not be deprived of receiving this support. The father’s serious blameworthy conduct after October 2021 is the dominant factor in this case. It would be unfair to depart from the presumptive start date in his favour in these circumstances.

Part Seven – The father’s income and calculation of the arrears owing

7.1 Positions of the parties

[65] The final step in the Colucci framework is to quantify the proper amount of support for each year from the start date of retroactivity. The father’s income for each year needs to be assessed to do this.

[66] The father claims his income each year, as reflected on his U.S. tax returns converted to Canadian dollars has been as follows:

• 2021 - $18,975
• 2022 - $17,105
• 2023 - $43,374
• 2024 - $23,650

[67] The father received an inheritance of about $25,000 U.S. dollars in 2023. This was included in his U.S. tax return. The court agrees with the father that this is not income and should be backed out of the calculation. This means his 2023 income was $9,983 in Canadian dollars.

[68] The father claims that his ability to earn income is and has been impaired by his sickle cell anemia. He claims he can only work part time and no income should be imputed to him.

[69] The mother submitted that the father is deliberately under-employed. She asked the court to impute a Canadian minimum wage annual income to him.

7.2 Legal considerations

[70] The court may impute income to a party pursuant to section 19 of the guidelines.

[71] The jurisprudence for imputation of income in these circumstances 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:

1. Is the party intentionally under-employed or unemployed?
2. If so, is the intentional under-employment or unemployment required by virtue of reasonable educational or health needs?
3. If not, what income is appropriately imputed?

a) A court must consider whether the under-employment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse. If the court is satisfied that one of these reasons has been established, it cannot impute income to the party. See: Lavie v. Lavie, 2018 ONCA 10, at para. 28.

b) 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.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

c) 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.

d) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken, 2003 O.J. No. 2780 (SCJ); Jonas v. Jonas, 2002 O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373; Prillo v. Homer, supra.

e) The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli, [2006] O.J. No. 4142 (SCJ). Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton, [2005] O.J. No. 190 (SCJ) and Stoangi v. Petersen, [2006] O.J. No. 2902 (SCJ).

f) A party who wishes to have their medical condition taken into account as a basis that they cannot work bears the onus to establish material disability. This goes beyond testifying that they suffer from depression and anxiety: they must establish that the extent of their condition disables them from work. This onus cannot ordinarily be discharged solely on the basis of the party’s testimony. They would need to produce medical records and expert evidence about their condition, prospects and treatment. See: Geishardt v. Ahmed, 2017 ONSC 5513; Wilkins v. Wilkins, 2018 ONSC 3036.

[72] The above is a non-exhaustive list and as such, the court has discretion to impute income based on other circumstances.

7.3 Analysis

[73] The mother acknowledged that the father has sickle cell anemia.

[74] However, the father filed no medical evidence supporting his contention that his illness impairs his ability to work. He provided no evidence about what work he can and cannot perform. He provided no evidence about his prognosis, any treatment he is receiving and whether he is compliant with his treatment recommendations.

[75] The father acknowledged that he earned more than Canadian minimum wage income before he sold his business in 2015. He provided no evidence that his medical situation is worse now than it was then.

[76] The court finds that the father is capable of earning an income close to the Canadian minimum wage. He has experience in security work and can likely work more hours than he is presently working. He used to work in construction. He has worked as a personal trainer. He ran a production company many years ago. However, the court will not order income in excess of the Canadian minimum wage. To her credit, the mother did not seek a finding that the father can earn more than this. The father has some health limitations, only has a high school education, leads a modest lifestyle and is not capable at this time of earning much more.

[77] The Canadian minimum wage has changed frequently since 2021. As of April 1, 2025, a full-time annual minimum wage income will be $36,920. For the purpose of this calculation, the court will impute the father’s annual income at $33,000 starting on February 1, 2021. It will increase the imputation of the father’s annual income to $36,000, starting on April 1, 2025.

[78] The guidelines table amount for three children, based on the imputed annual income of $33,000 is $680 each month. This has accrued for 50 months (February 2021 to the end of March 2025), for a total of $34,000.

[79] The court finds the father paid the mother some child support and made purchases for the children up until October 2021. He provided proof of a Western Union payment in response to the mother’s text to him in February 2021. However, his evidence of payments was sparse. His evidence that he paid $10,000 to $15,000 to her in 2021 was not credible. The mother’s evidence that he paid nothing to her was also not credible and contradicted by the Western Union receipt provided. The court will give the father a support credit for 2021 of $4,000. This reduces his arrears to $30,000.

[80] The ongoing guidelines table amount for three children, based on the father’s imputed annual income of $36,000, will be $737 each month.

Part Eight – Section 7 expense claim

[81] 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 section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See: Park v. Thompson, 77 O.R. (3d) 601 (Ont. C.A.).

[82] In Titova v. Titov, 2012 ONCA 864, the court set out the following framework for determining a party’s contribution to a child’s section 7 expenses:

a) Calculate each parties’ income for child support purposes.
b) Determine whether the claimed expenses fall within one of the enumerated categories of section 7 of the guidelines.
c) Determine whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.”
d) If the expenses fall under paragraphs 7(1)(d) or (f) of the guidelines, determine whether the expenses are “extraordinary” as defined by subsection 7(1.1) of the guidelines.
e) The court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.
f) The court determines the proportions that each party should contribute to the expenses, with the guiding principle being that the expenses will be shared in proportion to their incomes.

[83] The court will not order the father to contribute to the section 7 expenses claimed by the mother in her trial affidavit for the following reasons:

a) She did not plead this relief. It is fundamental to the litigation process that lawsuits be decided within the boundaries of the pleadings. See: Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74, [2002] O.J. No. 1365 (C.A.). The court has discretion to hear a claim not pled, however it declines to do so in this case because:
i) The mother could have asked to amend her application to also seek section 7 expenses when she was given leave to amend it to seek more expansive retroactive support.
ii) The mother filed no proof of her income.
iii) The mother failed to serve and file a financial statement. This is required when a party is claiming section 7 expenses. It appears, based on the mother’s evidence, that she resisted a request for this disclosure. The court required evidence of the mother’s income to calculate the parties’ respective section 7 expense obligations.
b) Almost all her claimed section 7 expenses pre-date the start date of support ordered in this decision. The court also accepts that the father paid for part of these expenses.
c) She provided no evidence that the extra-curricular section 7 expenses claimed after October 2021 are extraordinary expenses as defined by subsection 7(1.1) of the guidelines. This includes her claims for swimming expenses for the youngest child and golf shirts for the oldest child.
d) She provided no evidence that the claimed section 7 expenses were reasonable and necessary as required by section 7 of the guidelines.
e) She did not consult with the father about any of these expenses prior to incurring them.

Part Nine – Payment of arrears

[84] The mother proposed that the father pay the support arrears created by this order at $1,000 each month. The father proposed making monthly payments towards the arrears of $300 each month, together with an annual payment of $2,000.

[85] The court recognizes it has imputed a modest income to the father. However, he received a $25,000 U.S. inheritance in 2023. He deposed that he applied these funds to funeral expenses, his debts and other personal expenses. He applied none of it to child support. This is unfair to the mother and the children. Starting on April 1, 2025, he shall pay $300 each month towards the arrears. In addition, he shall make a lump sum payment of $5,000 towards the arrears by May 31, 2025. Starting in 2026, he shall also make additional lump sum payments of $3,000 towards the arrears, on or before May 31st each year.

[86] It is apparent the mother will not facilitate any direct payment of support. It is important that this order be issued quickly and registered with the Family Responsibility Office so the father can make his payments. Orders will be made to expedite this process.

Part Ten – Conclusion

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

a) The father shall pay the mother child support of $737 each month, starting on April 1, 2025. This is the guidelines table amount for three children, based on his imputed annual income of $36,000.
b) The father’s support arrears are fixed at $30,000, as calculated in this decision.
c) The father shall pay the support arrears at the rate of $300 each month, starting on April 1, 2025.
d) The father shall pay an additional $5,000 lump sum towards the arrears by May 31, 2025.
e) Starting in 2026, the father shall make additional lump sum payments of $3,000 towards the arrears by May 31st each year.
f) The father shall provide the mother with complete copies of his income tax returns, including all schedules and attachments, and any notices of assessment, by June 30th each year.
g) A support deduction order shall issue.
h) The father shall take out this order within 10 days. The mother’s approval of the order as to form and content is dispensed with. The father should send the order directly to the judicial assistant for the court’s approval.
i) A copy of this decision shall also be sent by court staff to the legal department of the Director of the Family Responsibility Office with a request that it expedite opening a file in this matter so the father can start making his support payments.

[88] If either party seeks their costs, they are to serve and file written submissions by March 20, 2025. The other party will then have until April 3, 2025 to make a written response (not to make their own costs submissions). The submissions should not exceed three pages, not including any bill of costs or offer to settle. The submissions should either be delivered to the trial coordinator’s office on the second floor of the courthouse or emailed to the trial coordinator’s office.

[89] The court thanks counsel for their focused presentation of this case.

Released: March 6, 2025

Justice Stanley B. Sherr

[1] This will be discussed more below.

[2] 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.

[3] See: Michel v. Graydon, 2020 SCC 25.