Jansen v. DiCecco, 2025 ONCJ 189

Jansen v. DiCecco, 2025 ONCJ 189

DATE: April 9, 2025

COURT FILE NO. D199/00

ONTARIO COURT OF JUSTICE

B E T W E E N:

JANET JANSEN

JONATHAN KORMAN, for the APPLICANT

APPLICANT

• and -

DAVID DICECCO

RESPONDENT

ACTING IN PERSON

HEARD: MARCH 31, 2025

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

1The applicant (the mother) has brought an amended motion to change the child support terms regarding the parties’ 25-year-old son (the son), contained in the July 15, 2003 order of Justice Harvey Brownstone (the existing order).

2The mother seeks retroactive support starting on August 1, 2003 of approximately 1.4 million dollars.

3The respondent’s (the father’s) ongoing support obligations for the son terminated on May 31, 2021.

4The father asks that the mother’s motion to change be dismissed.

5On October 5, 2023, the court struck the father’s response to motion to change due to his persistent non-compliance with court orders. The court did not grant the father any rights of participation at the trial.

6The court fixed a date for an uncontested trial. The trial was adjourned several times at the mother’s request so she could obtain more third-party information about the father’s financial affairs.

7In her trial affidavit, the mother significantly expanded the amount of income she sought to impute to the father. The court set up an appearance to hear submissions about what rights of participation, if any, the father should be given at the uncontested trial, given this expanded claim.

8The court heard submissions from the parties on January 8, 2025. The court ordered the following:

a) The father shall have limited rights of participation at the hearing as follows:

i) He may serve and file by February 28, 2025 the following documents:

a. An updated sworn financial statement together with all attachments required by the Family Law Rules.

b. Documentary proof of his annual income.

c. The outstanding financial disclosure previously ordered.

ii) He may only rely on the documentation permitted in subparagraph i) above if he serves and files it by February 28, 2025. He may not file any further documents.

iii) He may make closing submissions after the completion of the evidence, limited to the issue of his annual income. He may not make submissions regarding the start date of support, section 7 expenses or the mother’s income.

iv) If he files documents as set out in subparagraph i) above, the mother has the option of cross-examining him for up to three hours at the hearing.

v) He will have no further rights of participation at the hearing, including the right to give direct evidence or examine the mother or her witnesses.

9The father filed, but did not serve, his T4 statements from 2015 to 2024. He did not file a sworn financial statement or provide any of the disclosure required from previous orders.

10As he was self-represented, the court assisted the father by serving the material on the mother and accepting his documents for filing. They were all marked as exhibits at the trial.

11The court reviewed the affidavits filed by the mother, all financial statements filed in the continuing record, the previous orders of the court, and the additional financial material filed by the father.

12The mother provided additional oral evidence as the court had some questions for her.

13The court also had some questions for the father, and he testified. He was also permitted to give some additional sworn evidence during his closing submissions. The mother’s counsel chose to only ask him a few questions in cross-examination.

14The issues for the court to determine are as follows:

a) Was there a material change in the father’s income after the existing order was made, and if so, when?

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

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

d) How much child support should the father pay the mother for each year he is required to pay increased support? In particular:

i) What, if any, income should be imputed to the father in each of these years?

ii) Once the son turned 18 years old, was the Child Support Guidelines (the guidelines) approach (the table amount plus section 7 expenses) inappropriate for any of the years he was eligible for child support, and if so, what child support amounts were appropriate?

iii) Was the guidelines approach inappropriate in any year because the father was earning annual income in excess of $150,000, and if so, what child support amounts were appropriate?

iv) What additional amounts, if any, should the father pay towards the son’s special and extraordinary expenses (section 7 expenses), pursuant to section 7 of the guidelines?

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

Part Two – Background facts

15The mother is 60 years old. The father is 55 years old.

16The parties never cohabited. They had the one child together.

17The son always lived with the mother. He had no relationship with the father.

18The mother presently lives alone in a home she inherited from her mother. She is unemployed. She worked for 17 years as a real estate agent. She then stayed at home to raise the son. She returned to college and obtained a degree in graphic design. She has done little work since 2010 due to mental and physical health challenges.

19The father testified that he owns a home in Schomberg Ontario. He said he lives there with an adult son from another relationship.

20The father has four children altogether. Three are now adults. His youngest child is three years old and lives with her mother.

21The father is a businessman. He owns and operates a business called Greenside. The father described it as a construction company. The mother described it as much more than a construction company. This will be addressed in more detail later in this decision.

22The father has been involved in significant litigation with several women he has had relationships with.

23On July 31, 2003, on consent, Justice Harvey Brownstone ordered that the father pay the mother child support of $700 each month, based on an imputed annual income of $89,100. The father was also ordered to pay $305 each month towards the son’s section 7 expenses. Child support arrears were fixed at $6,200.

24The father was also involved in litigation with his first ex-wife in the Superior Court of Justice over property issues. They had no children together. On January 5, 2005, after a trial, Justice Murray ordered the father to pay his first ex-wife an equalization payment of $51,750, together with costs of $10,000.¹

25The father was involved in litigation in the Superior Court of Justice in Newmarket, Ontario between 2009 and 2012 (the Newmarket case) with his second ex-wife regarding their two children. The case also addressed property and spousal support issues.

26On June 18, 2012, on consent, Justice Glass made a final order in the Newmarket case. The father’s annual income was assessed at $150,000. He was ordered to pay child support of $2,012 each month for his two children and spousal support of $1,982 each month, starting on July 1, 2012. His second ex-wife’s annual income was assessed at $10,000. The father was ordered to pay his second ex-wife $332,500, consisting of an equalization payment, support arrears and interest. This payment took into consideration that the father had already paid his second ex-wife $207,500 towards the equalization of net family property.²

27The father confirmed at this trial that he entered into a domestic agreement with the mother of his 3-year-old child. The agreement is dated May 15, 2023. It requires him to pay child support to that mother of $3,500 each month, inclusive of $1,000 each month for childcare expenses. He is also required to pay 80% of that child’s section 7 expenses.

Part Three – Summary of court events during this motion to change.

28The mother issued a motion to change the child support terms contained in the existing order on June 19, 2019. She sought an order increasing child support based on an imputed annual income to the father of $250,000, starting on December 1, 2018, and asked to fix support arrears at $263,412 as of December 1, 2018, based on a retroactive recalculation of the father’s income and support obligations back to 2003.

29The son was eligible to receive support when the mother issued her motion to change.

30The father filed a response to motion to change seeking to terminate child support.

31On September 23, 2021, the mother amended her motion to change and expanded her claim for retroactive support.

32On September 27, 2021, after a contested motion, Justice Zisman terminated child support for the son, effective May 31, 2021. The father had paid the support required in the existing order until his ongoing support obligation was terminated.

33On October 22, 2021, Justice Zisman released written reasons and ordered the mother to pay the father his costs thrown away of $7,500, arising out of the late amendment of her motion to change.

34In October 31, 2022, Justice Zisman dismissed a motion brought by the father to dismiss the mother’s motion to change.

35The mother moved to strike the father’s response to motion to change. The court released written reasons for decision on May 23, 2023. See: Jansen v. DiCecco, 2023 ONCJ 212. The court found the father was in breach of court orders but exercised its discretion not to strike his response to motion to change at that time. The court made a further disclosure order and ordered the father to pay the mother’s costs of the motion fixed at $5,000.

36The father did not pay the costs ordered and provided none of the disclosure ordered on May 23, 2023.

37On October 5, 2023, for oral reasons given, the court struck the father’s response to motion to change and reserved the issue of costs.

38The court set a date for an uncontested trial. The mother asked to vacate the date and brought third party disclosure motions. Third party disclosure orders were made on March 19, 2024.

39The trial date was adjourned twice again, at the mother’s request, so she could obtain the disclosure ordered and prepare her trial material.

Part Four – Evidentiary issues

40The rules of evidence are not relaxed just because this is an uncontested trial.

41The mother produced over 1700 pages, including exhibits, in her first trial affidavit. She then filed a supplementary affidavit. The court only relied on admissible evidence.

42The court struck portions of the mother’s trial affidavits that violated the rules of evidence. It permitted relevant hearsay evidence where there was an applicable exception to the hearsay rule. For instance:

a) It struck references to settlement discussions in the mother’s affidavit.

b) It struck most of the content of several affidavits and an Answer/Claim filed by the father’s second ex-wife in the Newmarket case, that were attached as exhibits to the mother’s trial affidavit.

Evidence violates the rule against hearsay when it is an out-of-court statement proffered for the truth of its contents. Although the father’s second ex-wife’s affidavits were sworn evidence, they were not sworn for the purpose of this case. They were out-of-court statements and presumptively inadmissible. The mother could have called this witness and decided not to.

c) It admitted minor portions of the father’s second ex-wife’s affidavits filed in the Newmarket case. The second ex-wife had admitted in her affidavits to participating in an income splitting arrangement with the father, even though she had done little work for his business. This admission falls within the admission against interest exception to the hearsay rule, as she admitted to misrepresenting her real income to the Canada Revenue Agency (the CRA) and, together with the father, improperly obtained a financial benefit by doing so.

d) It admitted financial statements the father filed in his court cases with the mother and his second ex-wife, and his mortgage application to the CIBC, dated November 26, 2020, pursuant to the hearsay admissions exception.

e) d) It admitted the court orders made regarding the father’s ex-wives. It also admitted the judgment of Justice Murray regarding the father and his first ex-wife. The court can take judicial notice of court orders and reasons for decision. See: Attorney General of B.C. v. Malik, 2011 SCC 18; A.S.A. v. T.I., 2025 ONCJ 51.

f) It struck correspondence between an appraiser and the father’s counsel in the Newmarket case that was attached as an exhibit to the mother’s affidavit. No hearsay exception applied to it.

g) It admitted income valuations prepared on behalf of the father and filed in the Newmarket case.³ They were not admitted for the truth of their contents. However, the reports contained several admissions made by the father about his income, including his deduction of personal expenses from his business income. They were admitted under the admissions hearsay exception. The court found this evidence relevant and reliable.

Part Five – Credibility and reliability

43The mother was a credible and reliable witness. She provided detailed evidence of events and supported her evidence with substantial documentation. She provided medical evidence corroborating her health issues.

44The father was not a credible or a reliable witness.

45It became apparent in this proceeding that the court could not trust anything the father said and that it could not rely upon any documentation he provided. The evidence supports a finding that he has deliberately misrepresented his assets and income to the court and has been doing so since 2000 to avoid his support obligations.

46There were multiple examples of the father’s dishonesty, including:⁴

a) The father represented during the court proceeding from 2000 to 2003 (the original court action) that he had no interest in Greenside. He claimed he was only an employee.⁵ This was not the case. He actually was the owner of this business. This was confirmed in the order of Justice Murray in 2005. Further, in the Greenside 2015 Financial Statement, there is the following note:

Share Capital

The corporation has issued, on October 31, 1996, 100 common shares at the value of 50 cents per share to a sole shareholder, Joseph DiCecco. It has been discovered that on January 2, 2000, Joseph DiCecco sold his shares to David DiCecco, by way of a private agreement, which the Chairman of the Board, Joseph DiCecco, approved and signed.

Further, the business valuation, dated August 2011, filed on behalf of the father in the Newmarket case states:

Greenside was started by David DiCecco in 1996. Mr. DiCecco has been the sole shareholder of the company since its inception.

b) The father failed to disclose in the original court action that he was also the owner of 2000444 Ontario Inc. (the Garden Centre). This business was incorporated on December 12, 2020.⁶ The father’s valuation report in 2011, filed in the Newmarket case, states that the father purchased the interest of his partner in the Garden Centre in 2002/2003. This was not revealed in the original court action. The valuation states that the Garden Centre had revenue of over $300,000 in 2004.

c) The father failed to provide meaningful financial disclosure in this case. He breached several orders for production of this disclosure. His Answer/Claim was eventually struck because of his persistent non-compliance with court orders. The court finds his non-compliance with the orders was intentional, done with an intention to obscure his real assets and income.

d) The mother went to considerable efforts to locate reliable financial information about the father. She brought third party motions. This resulted in her obtaining information about his hidden bank accounts and assets.

e) In his financial statement sworn on November 6, 2019, filed on this motion to change, the father represented he owned a 75% interest in the property he was living in.⁷ He valued his interest in this property at 1.3 million dollars. He valued his other assets at $10,000. He deposed he had debts of $420,000, leaving his net worth at $890,000.

In his only other financial statement filed in this case, sworn on March 9, 2022, the father deposed that he owned a different property, which he valued at 3 million dollars. He was its sole owner. He disclosed further assets totaling $361,500. He claimed debts of $739,500, leaving his net worth at $2,622,000.

Both financial statements were false. In her disclosure requests, the mother obtained the father’s mortgage application to the CIBC dated November 26, 2020 – about one year after his first financial statement was sworn in this case.⁸

The mortgage application revealed that the father owns three properties, not just one property, which is all he disclosed in this case. He valued them at 2.6 million dollars, 2.6 million dollars and 1.2 million dollars respectively. He also listed a CIBC account with a balance of $819,728. That account was never disclosed in this case. The total assets listed by the father in this mortgage application were $7,970,328. His debts listed were $822,230. This means the father’s represented net worth to the bank was $7,148,098 – a far cry from the $890,000 he represented to the court in his financial statement sworn on November 6, 2019, and the $2,622,000, he represented to the court in his financial statement sworn on March 9, 2022.

The father’s misrepresentations about his net worth did not end there. The mother was able to locate an investment account in the father’s name. It is dated September 30, 2020, and shows a balance of $528,553. This brought his net worth to $7,676,631 as of November 26, 2020.⁹

f) The father reported earning annual income between 2003 and 2019 ranging from $46,000 to $93,000.¹⁰ He paid a judgment to his first ex-wife of about $61,700. He made an equalization payment to his second ex-wife of about $530,000. He paid his second ex-wife combined child and spousal support of $4,000 each month. He paid the mother in this case child support of $1,000 each month. It is apparent he could not have made these payments and accumulated the wealth he did based on the income he reported earning each year to the CRA and the court. He is earning well in excess of this.

The court order of May 23, 2023 required the father to explain how he has accumulated his wealth. It ordered him to set out any gifts or loans he has received and to provide documentary evidence of his investment growth since 2003. He provided none of this information. An adverse inference is drawn against him.

g) Despite the father consistently deposing that he earned annual income of under $100,000 to this court, he settled the Newmarket case in 2012 on the basis that he was earning annual income of $150,000. He also agreed in his May 15, 2023 domestic agreement to pay the mother of his 3-year-old child support of $3,500 each month, inclusive of $1,000 each month for childcare expenses. The annual income required to generate a $2,500 a month child support payment for one child under the guidelines is about $317,000.

h) The father was avoidant and inconsistent when giving evidence at trial. The court asked him how many children he had. He took time to think about it. He answered three. He has four children. The court asked him if he was paying child support for his 3-year-old child. He said no. He then acknowledged he had entered into a domestic agreement with that child’s mother. He was asked if he was paying her the $3,500 a month child support he had contracted to pay. He said he was only paying her $1,000 each month for childcare expenses.

i) The mother demonstrated a pattern where the father put assets in the names of other persons when a court action was pending. This started with his claim during the original court action that his father owned Greenside when the records reveal that he was its owner. The father added his mother to his CIBC account shortly after this case started in 2019. The father also claimed his mother had an interest in his homes when it suited his purposes. At various times in court proceedings, he would claim she either had a 25% interest or a 50% interest in the property where he was living. The father testified that he sold his home after the Newmarket case was concluded and bought another home. His mother was given no interest in that property. It is no coincidence that there was no matter before a court at that time.

It is also not a coincidence that the income the father reported to the CRA jumped from $74,468 in 2012 to $162,406 in 2013, as the Newmarket case was finalized in 2012.

j) The father testified at this trial that he was only married to his first ex-wife for 10 months and she didn’t get anything from him. The 2005 judgment of Justice Murray indicates he was required to pay her about $61,700.

k) The evidence showed that the father income split with his second ex-wife to reduce his income and his tax liability to the CRA. At times, he paid his second ex-wife more income than he paid himself. The second ex-wife deposed in the Newmarket case that she only worked part-time at the business. The business did not replace her after she and the father separated.

l) The father acknowledged in questioning in the Newmarket case that he deducted significant personal expenses from his business income. He deposed:¹¹

A smart person tries to bury things in the business and that’s what I did. You can try to uncover it I guess.

47This is one of the most egregious cases of financial deception this court has seen in many years.

Part Six – Retroactive support

6.1 Legal considerations

48The mother’s motion to change the terms in the existing support order is governed by subsection 37 (2.1) of the Family Law Act (the Act).

49Any 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.). That presumption was not rebutted by the father.

50In 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. factors¹² continue to guide this exercise of discretion, as described in Michel.¹³ 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.

51The retroactive support analysis is the same for table support and section 7 expenses. See: Smith v. Selig (2008) 2008 NSCA 54, 56 R.F.L. (6th) 8 (NSCA); Hetherington v. Tapping, 2007 BCSC 209 (BCSC), Surerus-Mills v. Mills [2006] O.J. No. 3839 (Ont. SC); Cumor v. Mohamud, 2024 ONCJ 162; Kovalchuk v. Kovalchuk, 2023 ONCJ 355.

52Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, par. 25.

53Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S., par. 97.

54The exercise of judicial discretion must encourage financial disclosure and in no way reward those who improperly withhold, hide or misrepresent information they ought to have shared. Proactive disclosure of changes in income is the first step to ensuring that child support obligations are tied to payor income as it fluctuates. Inadequate disclosure breeds “a backlog of [retroactive] support applications”. Indeed, with full, frank and regular disclosure, long-term arrears should be rare. See: Colucci, par. 54.

55In 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.

6.2 Has there been a material change in circumstances regarding child support?

56The first step in the Colucci framework is to determine if there has been a material change in circumstances regarding child support.

57To meet the threshold, a decrease in income must be significant and have some degree of continuity, and it must be real and not one of choice. Trivial or short-lived changes are insufficient to justify a variation. See: Colucci, par. 61.

58The court finds that the father seriously misrepresented his income in the original court action. He has been earning materially more income than the income attributed to him in the existing court order since August 1, 2003.

59The mother easily satisfied the first part of the test.

6.3 What is the presumptive start date when child support should be changed?

60The second 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 were given by the mother to the father.

61Effective 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. This low bar is justified by the recipient’s informational disadvantage. Regardless of whether the recipient had given notice, the payor knew when their own income had increased and must be taken to know that more income means more support. See: Colucci, par. 86.

62Although effective notice can be as little as broaching the topic in conversation, formal notice is something more, generally taking the form of written correspondence from the recipient or counsel or the commencement of legal proceedings. See: Wilkinson v. Wilkinson, 2008 ONCJ 96; Vandenberghe v Dittrick, 2024 ABKB 58; Wilson v. Johnson, 2024 ONCJ 6, per: Justice Carole Curtis; Crightney v. Garcia, 2024 ONCJ 431.

63The mother testified that she asked the father for increased child support in 2009. She said that he reacted with hostility. She said that on one occasion he waved a $100 bill in front of her and said he would give her more child support for sexual favours.

64The court found the mother’s evidence credible. It finds she gave effective notice to the father by July 1, 2009.

65Often formal notice is the date the motion to change is served on the payor. However, this case is different. The mother incorrectly started a motion to change the existing order in the Superior Court of Justice on February 9, 2017. The father then actively avoided service of the motion to change. This was set out in the mother’s trial affidavit and in an affidavit of service from the process server she hired.¹⁴ She eventually obtained an order for substituted service on the father. However, she had to withdraw that motion to change because she was in the wrong court. She had to start over.

66The father was aware that the mother had started a court case to increase child support. He evaded service. The court finds he had formal notice that she was seeking to increase child support no later than March 1, 2017.

67Colucci sets out that the presumptive start date cannot be more than 3 years before the date of formal notice. Accordingly, the court finds that the presumptive start date for support to change is March 1, 2014.

6.4 Should the court depart from the presumptive start date?

68The mother asks to depart from the presumptive start date. She asks that child support be changed in accordance with the annual income the court imputes to the father starting on August 1, 2003 – the first day of the first month after the existing order was made.

69The father opposed any change to the existing order.

6.4.1 Reasons for delay

70In 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.

71A 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.

72Rather, 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 - par. 86.

73Child support is the right of the child and should not be lost due to parental delay except in the few cases where the delay is unreasonable. See: Gray v. Rizzi, 2016 ONCA 152.

74In the absence of a clear agreement or court order that waives disclosure requirements or provides for another mechanism to calculate child support, delay will rarely substantially prejudice a payor parent. The payor knows about the existence of a child support obligation and that the quantum of the obligation is based on the payor’s line 150 income, calculated annually. Indeed, the payor is usually the only party who knows about an increase in that relevant income. See: Henderson v. Micetich, 2021 ABCA 103, par. 42.

75Evidence of intimidation can excuse delay. See: Swiderski v. Dussault, 2009 BCCA 461; Collings v. Colling 2017 ONSC 2232.

76Evidence that the payor became hostile and verbally aggressive when support was raised can form a reasonable basis for delay. See: Henry v. Smith, 2016 ONCJ 645.

77The support recipient’s lack of knowledge about the true magnitude of a payor’s pay increase may explain the delay. See: Burchill v. Roberts, 2013 BCCA 39.

78The mother provided understandable reasons for delaying in bringing her application to change child support, being:

a) The father deliberately misrepresented his income and assets to her and the court. These misrepresentations continued for 25 years.

b) The father did not advise the mother about annual increases in his income.

c) The mother was unaware of the magnitude of the father’s misrepresentations until she observed in the summer of 2016 that the scope of his business had significantly expanded. She learned even more about the extent of his misrepresentations after she reviewed the file in the Newmarket court case.

d) The mother was violently assaulted by three men in 2010 shortly after she started asking the father for more money. The mother believes the father was behind this assault. The court is not making this finding of fact. However, it helps explain why the mother delayed coming to court.

e) The mother’s mental health deteriorated after the assault. She was eventually diagnosed with PTSD. She has not done much work since this incident.

f) The mother had limited emotional means to engage with the father. She has other mental health issues. She has been diagnosed with bipolar disorder. The court accepts her evidence that this court proceeding has been emotionally damaging to her.

g) The mother was understandably reluctant to reengage with the father in litigation. The first court action was lengthy and difficult for her. The mother’s fears about reengagement with the father were borne out in this case. He has been dishonest and obstructive. He has been abusive to the mother. He disdains her.¹⁵ She was very reluctant to engage with his level of anger.

h) During 2009 and 2010, the father dissuaded the mother from starting a motion to change, telling her she would get less money if she did. She testified that any time she raised the issue of increasing child support, the father would withhold support for a few months. She was living close to the poverty line at the time and the father’s conduct had a considerable financial and emotional impact upon her.

i) The mother feared the prohibitive costs of litigation. The father has driven up the costs of litigation. He has created additional costs by his refusal to provide meaningful and honest financial disclosure. The only reason the mother has been able to finance this litigation is because she inherited her mother’s home. The mother deposed she has had to take out a line of credit on the home and may lose it.

6.4.2 Blameworthy conduct

79Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.

80Blameworthy 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.

81The 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.

82Frank disclosure of income information by the payor lies at the foundation of the child support regime. See: Colucci, par. 50.

83To avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must not be blameworthy. See: D.B.S., par. 125.

84The father’s blameworthy conduct is as bad as it gets. He has:

a) Consistently misrepresented his assets and income to the mother and the court.

b) Failed to provide the mother and the court with meaningful or honest financial disclosure.

c) Failed to advise the mother about his increases in annual income.

d) Failed to pay the son anywhere close to the proper amount of child support.

e) Intimidated and pressured the mother not to seek increased child support from him.

6.4.3 The son’s circumstances

85There 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. The fact that the child does not have to suffer hardship because of their parent’s sacrifice is not one that weighs against making a retroactive support order. Rather, the recipient parent’s hardship, like that of the child, weighs in favour of the retroactive support award and an enlarged temporal scope. See: Michel, par. 123.

86The son’s financial circumstances were seriously disadvantaged by the father’s failure to pay proper support. The son and the mother often lived in poverty. They relied on food banks. They shopped at discount stores. The mother struggled to support the son and meet his financial needs. She had to rely on her mother to support the son.

6.4.4 Hardship

87The onus is on the payor to show hardship. The payor must adduce evidence to “establish real facts” supporting a finding of hardship. Bald assertions are not enough. The payor must also provide a complete picture of their financial situation, including income, assets and debts. See: Colucci, par. 107.

88If 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.

89While 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.

90The father did not meet his onus to show hardship. As of November 26, 2020 he had net worth over 7 million dollars. He had liquid assets of about 1.3 million dollars, consisting of his CIBC account and his investment account. It is very likely his net worth is much higher today.

91The mother will suffer hardship if the court does not order retroactive support.

6.4.5 Start date to change support

92The request by the mother to adjust child support starting on August 1, 2003, initially gave the court considerable pause. This is the longest retroactive support claim this court has seen. It has not dealt with the request lightly.

93The court considered that in Michel, the court ordered support be changed starting on the day after the existing order was made. The court found that the payor had misrepresented his income that resulted in the existing order and had failed to advise the support recipient of his subsequent increases in income. This resulted in a retroactive support order going back 11 years.

94Here, the mother is seeking a retroactive support order from the date of formal notice, being March 1, 2017, of just under 14 years. It is just under 11 years from the presumptive start date for support to be changed, being March 1, 2014.

95The level of blameworthy conduct in this case by the father and the extent of his non-disclosure of his actual income is far more severe than the payor’s in Michel.

96Paragraphs 42, 43 and 45 of Colucci are germane to the facts in this case. The court wrote as follows:

42Most recently, in Michel, my colleague Brown J. (speaking for the Court on this point) confirmed that “the date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness)”, including failure to disclose material information (para. 36; see also para. 33). Payor parents are “subject to a duty of full and honest disclosure” (para. 33). Where the payor fails to comply with this duty and leaves the recipient unaware of increases in income, a retroactive award “will commonly be appropriate” because non-disclosure “eliminates any need to protect [the payor’s] interest in the certainty of his [or her] child support obligations” (paras. 32 and 34).

43In practice, then, the date of retroactivity is frequently adjusted to align with the date of the material increase in income, despite the “general rule” of varying to the date of effective notice in D.B.S. (para. 118). It would be “untenable to suggest that a parent who fails to provide financial disclosure can assume that the amount being provided is adequate because the recipient parent has not brought a court application” (Brear, at para. 74, per Pentelechuk J.A.). Further, even where the payor has disclosed increases in income, the D.B.S. factors may support extending a retroactive increase of support back to the time of the change in income.

45In light of the existing approach to blameworthy conduct and the pervasiveness of non-disclosure, it may be necessary in a future case to revisit the presumptive date of retroactivity in cases where the recipient seeks a retroactive variation to reflect increases in the payor’s income. A presumption in favour of varying support to the date of the increase would better reflect the recipient’s informational disadvantage and remove any incentive for payors to withhold disclosure or underpay support in the hopes that the status quo will be maintained. Such a presumption would accord with other core principles of child support and reinforce that payors share the burden of ensuring the child receives the appropriate amount of support.

97If the Supreme Court of Canada is postulating that support should presumptively be adjusted back to the date of the material increase in income in every case, support should be adjusted back to the date of the material increase in income when a payor has engaged in egregious blameworthy conduct and bad faith to the level found in this case.

98Every aspect of this case dictates that it is fair to adjust support back to August 1, 2003, as requested by the mother. This case is a classic example of the feminization of poverty set out by the Supreme Court of Canada in Michel. The mother has provided understandable reasons for her delay in coming to court. She has demonstrated considerable courage in her dogged pursuit of this claim and achieving some measure of justice. The father has engaged in severe blameworthy conduct. He has weaponized his superior resources to impoverish the mother and the son. The circumstances of the son were disadvantaged. The father has lived a luxurious lifestyle. He owns three properties. The mother and the son often lived in poverty. A retroactive order will not cause the father hardship. He built up considerable net worth at the expense of the mother and the son. The mother will suffer hardship if a retroactive order is not made.

99The court finds that it is fair in these circumstances to depart from the presumptive start date and to retroactively change support starting on August 1, 2003.

Part Seven – What amounts should the father pay for support starting on August 1, 2003?

7.1 The final step in the Colucci framework

100The final step in the Colucci framework is to quantify the support payable for every year from the start date support is changed.

101This requires the determination of these issues:

a) What income should be imputed to the father starting on August 1, 2003?

b) Was the guidelines approach inappropriate for any of the years the son was eligible for child support once he turned 18 years old?

c) Was the guidelines approach inappropriate in any year because the father was earning annual income in excess of $150,000?

d) What additional amounts, if any, should the father pay towards the son’s section 7 expenses?

7.2 Imputation of income – legal principles

102Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.

103The mother is not seeking to impute income to the father based on his intentional unemployment or underemployment. Rather, she is asking the court to determine his actual income for support purposes. She claims that he has hidden income sources, earns unreported cash income and has deducted personal expenses from his business income.

104The 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 CanLII 41868 (ON CA), [2002] O.J. No. 3731(Ont. C.A.).

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 self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See: Whelan v. O’Connor, 2006 CanLII 13554 (ON SC), [2006] O.J. No. 1660, (Ont. Fam. Ct.). This principle also applies where the person’s employment income is derived from a corporation that he or she fully controls. See: MacKenzie v. Flynn, 2010 ONCJ 184; Yocheva v. Hristov, 2019 ONSC 1007; Poulin v. Poulin, 2017 ONSC 64.

e) The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002) 2002 CanLII 2806 (ON SC), 31 R.F.L. 5th 88 (SCJ). This includes the obligation to present information in a user-friendly fashion. A recipient should not have to incur expense to understand it. See: Reyes v. Rollo, 2001 CanLII 28260 (SCJ).

f) A review of the caselaw respecting business deduction claims reveals a general theme that in determining whether expenses should be added back into a parent’s income for child support purposes, an important consideration is whether there is a benefit derived from the business expenses that employed people would have to cover from their personal income. See: Izyuk v. Langley, 2015 ONSC 2409.

g) 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; Drummond v. Richardson, 2024 ONCJ 547.

h) The court may impute income where it finds that a party has hidden or misrepresented relevant information respecting their income to the other party or to the authorities. This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes. See: Kinsella v. Mills, 2020 ONSC 4785; Prillo v. Homer, 2023 ONCJ 8.

i) The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196 (C.A.), at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441 (S.C.); M.A.B. v. M.G.C., 2022 ONSC 7207.

j) 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.

105The above is a non-exhaustive list and as such, the court has discretion to impute income based on other circumstances.

7.3 The father’s annual income

106The father’s reported income to the CRA from 2003 to 2019 ranged from $45,998 to $93,029. The one exception was in 2013, when he reported income of $162,406.

107Between 2007 and 2020, Greenside reported gross revenue between a high of just over 1.9 million dollars in 2008, to a low of $73,779 in 2017. In all but 3 of those years, Greenside reported gross revenue of over 1 million dollars.

108The father described Greenside as a construction company. It is likely much more than that. The mother took a screenshot of a 13-year-old promotional video for Greenside, linking the viewer to a website describing the business as providing the following goods and services:¹⁶

a) Aggregates

b) Bulk Salt

c) Commercial and Industrial Construction

d) Commercial and Industrial Snow Plowing Service

e) Construction Waste Bins

f) Demolition

g) Excavating

h) Garden Debris Bins

i) Grading

j) Interlocking Stone

k) Natural Stone

l) Nursery stock and flowers

m) Paving

n) Salt and Sand supply in bulk

o) Soils

p) Specialty patio stones

109The mother provided photographs that Greenside has expanded the scope of its business over the years. It has added significant equipment and uses more space for its operations.

110The mother also produced evidence that the father, or Greenside, rented out five residential units on leased property between 2014 and 2022.

111At paragraph 462 of her trial affidavit, the mother prepared a chart setting out the annual income she seeks to impute to the father. She starts at $558,216 for the years 2003 to 2005, a reduction in income in 2006 and 2007 (still over $400,000), and then significant increased income to a high of just over 1.5 million dollars in 2021.

112In most cases, a party will provide detailed financial disclosure to support their business’ financial statements. The court will examine that evidence to determine if additional income is being earned, whether expenses are being inappropriately deducted from income and whether retained earnings of a corporation are being improperly accumulated to artificially reduce a payor’s income. The court will then assess the actual income of the business.

113This cannot be done here. The underlying data, including the financial statements provided by the father for his business, is woefully incomplete, unreliable and not credible. The father is likely considerably underreporting and manipulating Greenside’s revenue. The father conceded in the Newmarket case that he deducts substantial personal expenses from Greenside’s business income. How much this is done cannot be ascertained from the incomplete financial disclosure he provided. The mother obtained bank statements from a CIBC account that the father did not disclose. Huge amounts of deposits and withdrawals are reflected in the account. We will likely never receive a credible explanation for this.

114The court recognizes that any methodology to calculate the father’s income will have its flaws. This is entirely due to the father hiding assets, misrepresenting his financial affairs and failing to provide meaningful financial disclosure. The court can only do the best it can with the evidence it has and the inferences that can be drawn from that evidence.

115The court will assess the father’s income by examining his increases in net worth since the first court action, as reflected in his financial statements filed with this court and the Superior Court of Justice and, as represented in his CIBC mortgage application dated November 26, 2020. Although far from precise, these statements provide more reliable data points to assess his annual income. How much income did he need to earn each year to generate the wealth he accumulated?

7.3.1 2003 to 2005

116The first period the court will address is the years 2003 to 2005. By comparing the father’s last financial statement in the original court action, sworn on August 1, 2002¹⁷ and his statement of net worth as of April 15 2005, contained in his financial statement sworn on September 24, 2009 in the Newmarket case,¹⁸ we see that his net worth increased by about $660,000 in 32 months, exclusive of his interest in his home.¹⁹ This does not include any increase in the value of Greenside.

117Part of the father’s increase in net worth during this period would have been attributable to the appreciation in the value of his home. In his financial statement sworn on August 1, 2002, the father deposed that he owned 50% of this home – his mother owned the other 50%. He deposed that his equity in this home was $95,000, with the total equity in the home being $190,000.

118It became apparent in reviewing the documentary record that the father claimed his mother had an interest in his homes whenever it suited his purposes. At times, he claimed she had a 50% interest in his homes, at other times 25%. He testified at this trial that he sold his home after the Newmarket court case. He used the proceeds to buy another home to live in. He put that home solely in his name. For the purpose of this analysis, the court finds that the father has always been the sole owner of the homes he has lived in.

119The father was unsure when he sold the home that he had lived in during the original court action. He testified that he used the proceeds from the sale of that home to buy his next home.

120In his financial statement sworn on September 24, 2009, the father does not list owning a home on April 15, 2005, being the date of his marriage to his second ex-wife. This is likely accurate since it would have been to his benefit to deduct this asset from his net family property if he had it. He deposed in that financial statement that he currently owned a home. He claimed it was worth $800,000 as of July 2, 2009, with no mortgage on it.²⁰ This corroborates the father’s evidence that he used the proceeds of sale from one home to buy another home.

121The father deposed in his September 24, 2009 financial statement that he had an investment account of $450,000 on April 15, 2005. The logical assumption is that these were the proceeds from the sale of his first home and he used those proceeds to buy his next home. It also appears that the father’s RRSP increased by $2,000 during this time period.

122It is appropriate in this analysis to subtract the proceeds from the sale of the father’s home and the small increase in his RRSP, less his equity in his home as of August 1, 2002, when calculating the increase in his net worth during this period. This is because this increase in his net worth was not accumulated through unreported income. Rather, it increased due to an appreciation in real estate values. The court will subtract the amount of $262,000 ($450,000 – $190,000 +$2,000) from the father’s net worth for this period.

123The court finds that the father’s net worth during this period increased by $398,000 ($660,000 - $262,000).

124The increase in the father’s net worth cannot be explained by the income he claimed he was earning. He reported his income to the CRA for those years as follows:

a) 2003 - $45,998

b) 2004 - $61,726

c) 2005 - $49,503

125This reported income, averaging $52,409 over these three years, was barely enough to meet his own needs and pay $1,000 a month for child support to the mother.

126The court flagged this concern for the father when it released its endorsement on May 23, 2023. It ordered him to provide an accounting of how he accumulated his net worth, itemizing any gifts or loans he received and documentary proof of any accumulation of investment income. He provided none of this information. An adverse inference is drawn against him. The logical inference is that this increase in his net worth was accumulated through additional unreported income.

127The court will extrapolate this accumulated net worth to 36 months for the purpose of assessing his income for 2003 to 2005, as the net worth calculation done above was over 32 months. This brings his increase in net worth to $447,750 for 36 months ($398,000 divided by 32 months = $12,437 x 36 months).

128The court will divide this by 3 years to arrive at the additional annual income it will impute to the father. This comes to $149,250 annually ($447,750 divided by 3 years). The court finds this was unreported income.

129The analysis of the father’s income for 2003 to 2005 does not end there. It is appropriate in these circumstances to gross up his income, as he is declaring and paying tax on substantially less income than he is actually earning. This is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See: Sarafinchin v. Sarafinchin, 2000 CanLII 22639 (ON SC), [2000] O.J. No. 2855 (Ont. S.C.); Prillo v. Homer, 2023 ONCJ 8.

130For the purpose of this analysis, the court took the father’s average earnings from 2003 to 2005, being $52,409, and added $149,250 to it as unreported income. It then grossed up his income. A software analysis shows that the gross-up takes the father’s annual income to $321,669.²¹

131The guidelines table amount for one child at this income from 2003 to 2005 was $2,258 each month.

7.3.2 2006 to 2021

132The court will use a similar methodology to calculate the father’s income from 2006 to 2021. The court will determine the increase in the father’s net worth by comparing his net worth as of April 15, 2005, being his date of marriage to his second ex-wife, to his statement of net worth in his mortgage application, dated November 26, 2020. This is a period of 15.61 years.

133The father deposed in his financial statement sworn on September 24, 2009 in the Newmarket case that his net worth on April 15, 2005 was $669,800.

134The father’s mortgage application dated November 26, 2020, lists his assets at $7,970,328 and his debts at $822,230, leaving him with a net worth of $7,148,098. This is an increase of $6,478,118 ($7,148,098 - $669,800) from April 15, 2005.

135The father did not include his Edgepoint investment account of $528,533 in his mortgage application. This takes the increase in his net worth as of November 26, 2020, to $7,000,665 ($6,478,118 + $528,533).

136The increase in the net worth of the homes the father owned and lived in during this period should be subtracted from this calculation. This is because the appreciation in value of these properties is attributable to gains in the real estate market. It is not due to his earning unreported income. The evidence informs the court that the father used the $450,000 in his investment account on April 15, 2005 to purchase his next home. The equity in the home he owned on November 20, 2020 was $2,398,000 ($2,600,000 less a mortgage of $202,000). This means the increase in the equity of the homes he owned and lived in increased by $1,948,000 ($2,398,000 - $450,000) from April 15, 2005, until November 26, 2020.²²

137This deduction reduces the father’s increase in net worth to $5,052,665 ($7,000,665 - $1,948,000) for this period. Divided by 15.61 years, this is an average increase of $323,681 a year.

138There are a number of other adjustments the court could make but won’t, as it finds the competing factors offset each other.

139The court recognizes that some of the father’s accumulation of net worth during this period, (other than the increase in the value of his home that the court has excluded from his net worth) is due to factors other than earning unreported income. Part was due to market increases in his investment accounts and likely part was due to the appreciation in the value of the property that he valued at 1.2 million in his mortgage application.²³

140The court finds these factors are offset by the following:

a) The court is not including the equalization payments the father paid to his ex-wives in this analysis, which would further increase his net worth and income.²⁴

b) The father hid many of his assets and failed to provide an accounting of how he accumulated his net worth, despite being ordered to do so. An adverse inference is drawn against him.

c) There is a strong possibility that the father has other undisclosed assets that the mother could not locate. She did well to find the assets she did.

d) From 2006 through 2021, a period of 16 years, the annual income the father reported to the CRA averaged $88,544.²⁵ This income would not have generated any savings for the father since he was paying the mother child support of $1,000 each month and his second ex-wife $4,000 each month for combined child and spousal support. In fact, those payments would have likely left the father in a deficit position each year.

141The mother asked the court to add back a $250,000 debt the father claimed in his mortgage statement when determining his net worth as of November 26, 2020. She believes this is a corporate debt and not a personal debt. The court will not do this. It is unclear from the mortgage statement if this is a corporate debt. It is also unclear if any of the assets listed in the mortgage statement may be corporate assets. The court agrees with the mother that the father liberally mixed his personal and business assets.

142The court finds it is appropriate to impute an additional $323,681 to the father’s income for each year starting in 2006. This reflects unreported income by the father to the CRA and accounts for the increase in his net worth, as calculated above.

143This assessment of the father’s additional income, starting in 2006, also reflects the growth in his business that was described by the mother.

144The court will not engage in a year-by-year gross-up of the father’s income between 2006 and 2021, as the court is already, by necessity, engaged in an imprecise analysis of his income. Rather, the court will take the average income declared by him to the CRA during this timeframe of $88,544 and add an additional $323,681 of unreported income to it each year. It will gross up this income based on 2013 software calculations. This is the mid-point year in this analysis.²⁶ This results in an average annual income to the father of $701,411. The court will impute this income to the father from 2006 to 2021.

145The guidelines table amounts have changed several times since the existing order was made. From January to April 2006, the guidelines table amount for one child, based on an imputed income of $701,411 was $4,802 each month. From April 2006 to the end of 2011, it was $5,334 each month. From 2012 to November 30, 2017, it was $5,343 each month. And starting on December 1, 2017, it was $5,269 each month.

Part 7.4 – Should the court make any further adjustments to the guidelines amounts?

7.4.1 Subsection 3 (2) of the guidelines – is the guidelines approach appropriate for a child the age of majority or over?

146There are two potential adjustments that can be made to the amounts set out above.

147First, the son turned 18 years old in 2017. Different support consideration can apply once a child turns 18 years old. Subsection 3 (1) and (2) of the guidelines read as follows:

Presumptive rule

3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

148The closer the circumstances of the child are to those upon which the usual guidelines approach is based, the less likely it is that the usual guidelines calculation will be found to be inappropriate. See: Rebenchuk v. Rebenchuk, 2007 MBCA 22, at paragraph 30; Stephenson v. Thomas, 2014 ONCJ 669. For instance, if the child is living at home and attending post-secondary school, the guidelines approach will usually be applied. See: Sarreye v. Sheikhamed, 2023 ONCJ 525.

149Here, the son lived at home and attended Humber College for two years taking a Police Foundations program. The court does not find the guidelines approach inappropriate in these circumstances.

7.4.2 Section 4 of the guidelines – incomes over $150,000

150Second, the father has been earning annual income in excess of $150,000. This means the court needs to consider section 4 of the guidelines. Section 4 sets out how to calculate child support when a payor earns annual income of over $150,000 as follows:

Incomes over $150,000

4 Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;

(ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and

(iii) the amount, if any, determined under section 7.

151In Ridley v. DeRose, 2017 ONCJ 877, Justice Barry Tobin set out the following legal pathway when a payor is earning annual income over $150,000:

131Section 4 of the Guidelines provides the Court with two options when dealing with a payor whose income is over $150,000.00 per year.

132The first option is to award Table support and an amount for special and extraordinary expenses.

133The second option arises if the Court considers the first option to be inappropriate.

134If the second option is found to be appropriate, then child support will be determined in a three-step process:

a) Table support is calculated on the payor’s first $150,000.00 of income;

b) In respect of the payor’s income in excess of $150,000.00, the Court must determine an amount it considers appropriate having regard to:

(i) the condition, means, needs and other circumstances of the children;

(ii) the financial ability of each parent to contribute to the children’s support.

c) An amount for special or extraordinary expenses is determined.

135There is a presumption that Table support is the appropriate amount to award: Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250 para. 42.

136A payor who wants the Court to order a different amount bears the onus of rebutting that presumption by “clear and compelling evidence”. Francis v. Baker, supra para. 43. The onus is to demonstrate on the evidence that the Table amount of support would be inappropriate.

137The Supreme Court of Canada addressed the meaning of the word “inappropriate” in the context of s. 4 in Francis v. Baker, supra. The Court held that “inappropriate” is to be broadly defined to mean “unsuitable” rather than merely “inadequate” (para. 40).

152The Alberta Court of Appeal in Ewing v. Ewing 2009 ABCA 227, [2009] A.J. No. 712, reviewed the following considerations from the leading case of Francis v. Baker 1999 CanLII 659 (SCC), [1999] 3 SCR 250, in determining whether the court should exercise its discretion under section 4 of the guidelines:

i) There is a presumption that the Table applies to all incomes, including incomes over $150,000. A party seeking to deviate from the Table has the onus of rebutting the presumption. (paras. 41, 43)

ii. Children can expect the Table amount on the first $150,000 and a fair additional amount for that portion that exceeds $150,000. The closer the amount is to $150,000, the more likely it is that the Table amount will be awarded. (para. 41)

iii. Where the presumption is rebutted, the Guideline figures can be increased or reduced under section 4. (para. 42)

iv. The test for deviation from the Table amount is that the evidence in its entirety must be sufficient to raise a concern that the Table amount is inappropriate. The evidence for departure from the Guidelines must be clear and compelling. A party seeking deviation is not required to testify or adduce evidence and no unfavourable conclusion should be drawn from a failure to do so. It is recognized that a party may not possess the required relevant evidence. (para. 43)

v. The actual situation of the children is central, and the condition, means, needs and other circumstances of the children must be considered in the assessment of the initial determination of inappropriateness and the determination of appropriate support. (para.44) No single element of legislative purpose is to be given more weight than the actual circumstances of the children (para. 39). A proper construction of section 4 requires that the objectives of predictability, consistency and efficiency on the one hand, be balanced with those of fairness, flexibility and recognition of the actual "condition, means, needs and other circumstances of the children" on the other. (para. 40)

vi. To determine appropriateness the court must be armed with sufficient information, and trial judges have discretion to determine on a case-by-case basis whether a child expense budget is required to provide that information and they have the power to order it. (para. 45) Custodial parents are not required to produce child expense budgets in all cases under section 4.

vii. Although frequently child support results in a benefit to the wife, the legislative objective is maintenance for the children rather than household equalization or spousal support. (para. 41)

viii. While standard of living can be considered in assessing need, at some point support payments will meet even a wealthy child's reasonable needs. When the Table amount is so in excess of the child's reasonable needs it must be considered a functional wealth transfer to a parent, or de facto spousal support. (para. 41)

ix. The test for whether expenses are reasonable will be met by the paying parent if the budgeted expenses are so high as to "excee[d] the generous ambit within which reasonable disagreement is possible". See: Bellenden v. Satterthwaite, [1948] 1 All E.R. 343 at 345. (para. 49).

153The father did not meet his onus of establishing that applying the guidelines approach is inappropriate in this case. He provided no evidence to support that finding, let alone clear and compelling evidence. He provided no evidence that the guidelines approach is unsuitable.

154There is a complete absence of equity to support the court exercising its discretion under section 4 of the guidelines in favour of the father. He has consistently misrepresented his income and assets to the mother and the court. He has hidden income and assets. He intimidated the mother to dissuade her from coming to court earlier. Once she came to court, he tried to use his financial advantage to dissuade her from continuing with the case. He has acted in bad faith. He has lived a luxurious lifestyle while impoverishing the mother and the son. He has accumulated his wealth, to some extent, by failing to pay fair child support.

155In Lewis v. Lynch, 2024 ONCJ 325, the court made a finding of bad faith against the father because he withheld financial disclosure and did not advise the mother of significant increases in his income. The court repeats what it wrote in its trial decision:

67Courts at all court levels, including Colucci, are trying to send litigants the strong message that the failure to provide financial disclosure and to pay proper child support will not be tolerated. The Supreme Court of Canada in Michel observed how this has led to the feminization of poverty. This case proves that point.

68To change behaviour, courts must make orders that send clear and strong messages to support payors, such as the father, that such conduct will result in significant financial consequences for them. This will not dissuade all dishonest payors. However, increasing the risks for such conduct may dissuade many more of them.

69Here, the father made a calculated gamble that he would be able to control how his support was spent by not disclosing his income to the mother. He has lost that gamble.

156These comments apply to this case. The blameworthy conduct in this case far exceeds the blameworthy conduct by the payor in Lynch. The court will not exercise its discretion to depart from the guidelines approach in the father’s favour. However, the court will consider the high amount of guidelines table support he will be required to pay when considering the mother’s claim for additional contributions by him to the son’s section 7 expenses.

Part Eight – The mother’s claim for additional section 7 expenses

157The mother seeks an order that the father pay an additional $48,410 for the son’s section 7 expenses accumulated since 2003. She calculated the total section 7 expenses at $50,957.

158The court will not make the requested order. The mother did not set out the entirety of the son’s section 7 expenses since 2003, or the father’s contribution to them. The father paid $305 each month towards these expenses from the date of the existing order until support was terminated. This appears to cover the section 7 expenses claimed.²⁷ Further, the mother did not establish that some of the claimed expenses are eligible section 7 expenses, such as expenses for soccer and athletic programs. The mother did not attach any software analysis showing tax credits or benefits she received for medical and school expenses claimed.

159The mother also claimed expenses for the son’s post-secondary expenses at Humber College. She provided no evidence of student loans or grants the son received or might have been eligible for. She also did not provide a satisfactory reason as to why the son did not work and contribute to his own education.

160The father is being required to pay significant guidelines table support for the son. He is not getting any discount because he is earning over $150,000. However, the court finds the guidelines table amount is sufficient to cover all the needs of the son, including any additional section 7 expenses that may not have been covered by the amounts the father was required to pay for them in the existing order.

Part Nine – Calculation of arrears and payment of arrears

161This order will result in significant support arrears for the father.

162The arrears are calculated as follows:²⁸

a)

July 1, 2003, to December 31, 2005

($2,258 - $700)

x 30 months =

$46,740

b)

January 1, 2006, to April 30, 2006

($4,802 – $700)

x 4 months =

$16,408

c)

May 1, 2006, to December 31, 2011

($5,334 - $700)

x 68 months =

$315,112

d)

January 1, 2012, to November 30, 2017

($5,343 - $700)

x 71 months =

$329,653

e)

December 1, 2017, to May 31, 2021

($5,269 – $700)

x 42 months =

$191,898

TOTAL:

$899,811

163The father has sufficient wealth to satisfy these arrears. An order shall go that the arrears be paid forthwith.

Part Ten – Conclusion

164A final order shall go on the following terms:

a) The child support terms in the existing order are changed starting on August 1, 2003, as set out in paragraph 162 of these reasons for decision.

b) The father now owes the mother $899,811 for arrears of child support as calculated in paragraph 162 of these reasons for decision.

c) The arrears are due and payable forthwith.

d) A support deduction order shall issue.

165The mother is the successful party in this case. She is to serve and file her written costs submissions by April 22, 2025. The father will then have until May 6, 2025 to make a written response. The submissions should not exceed five pages, double-spaced, not including any bill of costs or offer to settle. The submissions should be either delivered to the trial coordinator’s office.

166The mother’s counsel shall take out the order. The approval by the father as to form and content of the order is dispensed with. The mother’s counsel should send the order to the trial coordinator as soon as possible for the court’s approval. This will permit the mother to take the necessary steps to enforce this order.

167The court commends mother’s counsel for the hard work done on her behalf.

Released: April 7, 2025

Justice Stanley B. Sherr

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.

Footnotes

1. 1This order is Exhibit M to the mother’s December 14, 2024 affidavit.
2. 2This order is Exhibit S to the mother’s December 14, 2024 affidavit.
3. 3See: Exhibit G to the mother’s December 14, 2024 affidavit.
4. 4This is not an exhaustive list.
5. 5See: Exhibit B to the mother’s December 14, 2024 affidavit.
6. 6See: Exhibit F to the mother’s December 14, 2024 affidavit.
7. 7The father claimed his mother had a 25% interest in the property.
8. 8See: Exhibit LL to the mother’s December 14, 2024 affidavit.
9. 9The mother uncovered substantial financial information about the father. The court agrees with her that it is unlikely she found everything.
10. 10One exception was in 2013 when he represented to the CRA that he earned $162,406. The father’s income reported to the CRA each year is set out in paragraph 431 of the mother’s affidavit sworn on December 14, 2024.
11. 11See: Exhibit P to the mother’s December 14, 2024 affidavit.
12. 12See: 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:
13. 13See: Michel v. Graydon, 2020 SCC 25.
14. 14The process server attested that he went to the father’s address. An adult male refused to identify himself, advised him to leave the premises and told his dog to attack him.
15. 15In its endorsement dated May 23, 2023, the court wrote “the respondent used his time for submissions to insult the applicant and her counsel. He claimed that “they were money-grubbing scabs of humans” and that “their disgusting words of his lifestyle made him sick to the bone”.
16. 16See: Exhibits RR and SS to the mother’s December 14, 2024 affidavit.
17. 17This was trial exhibit 4.
18. 18This financial statement is Exhibit KK to the mother’s December 14, 2024 affidavit.
19. 19The father deposed on August 1, 2002 that he had assets of $10,432, exclusive of the value of his home and he deposed in his September 24, 2009 financial statement in the Newmarket court case that his net worth was $669,980 on April 15, 2005.
20. 20He claimed he only owned 50% of this home.
21. 21The software calculations will be attached to this decision. The Divorcemate software does not go back before 2010, so the court used its 2010 tools for this calculation.
22. 22For the purpose of this analysis, the court is treating the $450,000 as the equity from the sale of the first home that was used to purchase his next home.
23. 23A third property listed in the mortgage application was purchased shortly before November 2020. There is no evidence that the father sold another property to purchase it.
24. 24He paid an equalization payment of $51,700 and costs of $10,000 to his first ex-wife and an equalization payment of about $530,000 to his second ex-wife.
25. 25The father’s reported income of $270,437 to the CRA for 2020. However, half of that amount was due to him cashing in his RRSPs. For the purpose of this analysis, the court fixed the father’s 2020 income at $135,000. He also filed his 2021 T4 statement at trial (he did not file his notice of assessment). This showed an income of $74,208 and was used for the purpose of this calculation. The father’s notices of assessment for prior years are in Exhibit OO to the mother’s December 14, 2024 affidavit.
26. 26In a year-by-year analysis, the gross-up in some years might have been lower and in other years it might have been higher. The court finds this is a fair method to gross up the father’s income when dealing with such a lengthy timeframe.
27. 27The court recognizes there might have been other section 7 expenses. However, these were not provided to the court.
28. 28The court is basing the arrears calculation on the adjustments in the table amount of support only. It made no changes to the existing order for section 7 expenses.