Court File and Parties

Court File No.: Toronto D55356/11 Date: 2012-09-28 Ontario Court of Justice

Between: Luyen Thi LE, Applicant

— AND —

Huy Thiet TRAN, Respondent

Before: Justice E.B. Murray

Heard on: September 25, 2012

Reasons for Judgment released on: September 28, 2012

Counsel:

• Leo W. Monaco, for the Applicant
• Murray E. Lightman, for the Respondent

MURRAY J.:

[1] Introduction

This is my decision on a claim by the Applicant mother against the Respondent father for support, including retroactive support, for the child Brian, born in 2000. She asks that the order be retroactive to the date of the child's birth, or alternatively to August 1, 2008, a date which is three years before the date on which her lawyer wrote to Father requesting child support.

[2] Relief Sought

Mother also requests that Father provide coverage for the child under any plan of medical/dental insurance which he enjoys by virtue of his employment, and that he obtain a policy of life insurance in a minimum amount of $250,000 and maintain that policy, naming Mother as irrevocable beneficiary in trust for the child.

[3] Procedural Background

Mother brings these claims by way of a temporary motion seeking this relief, which is effectively all the relief sought in her application. The parties have each filed affidavit material, and Father has filed a financial statement. There has been no questioning. The Ontario Court of Appeal has held that retroactive relief should not be granted on temporary motions except in very clear cases, and should be left to a trial judge. Counsel advised that there is no disagreement about the facts relevant to the motion, and that the parties wished me to make a final order based on the material before me. On that basis, I proceeded with the motion.

[4] Agreed Facts and Orders

The parties are agreed that:

1. Father shall pay ongoing child support in a table amount of $835 monthly based on his 2011 income of $94,338, and

2. Father shall provide coverage for the child under the medical dental plan provided by virtue of his employment for as long as the child is entitled to receive support from him and as long as Father receives this coverage as a benefit of employment.

[5] Initial Orders

I make these orders, and order that Father provide annual financial disclosure to Mother commencing in June 2013, consisting of his tax return and notice of assessment from the previous year and his last four pay stubs.

[6] Retroactive Support from August 2011 to May 2012

Father has voluntarily paid support in the amount set out above since June 2012. He agrees that he should pay support from August 2011, when he received the letter requesting child support payments, up to and including May 2012. His obligation for August–December 2011, calculated with reference to his 2010 income is $3,870 (5 mo. x $774/mo) and for January–May 2012, calculated with reference to his 2011 income, it is $4,175 (5 mo. x $835), for a total owing of $8,045, and I so order.

[7] Issue to be Decided

What remains to be decided is whether Father should be obligated to make a further retroactive payment. Father's position is that no further payment should be ordered.

[8] Legal Framework for Retroactive Support

The court has jurisdiction to order retroactive child support payments, and the principles set out by the Supreme Court of Canada in D.B.S. and S.R.G. v. T.A.R. and L.J.W., 2006 SCC 37, 2 S.C.R. 231, structure that discretion. In that decision the Court articulated two overarching principles governing claims for retroactive child support and retroactive increases in support:

1. Each parent has an obligation to insure that his/her child receives proper support in a timely manner; and

2. Courts considering these claims must balance the payor's interest in the certainty of the status quo with the need for fairness and flexibility.

The Court set out four factors to be considered in such claims:

1. Reason for the delay in bringing the claim;

2. Conduct of the payor parent;

3. Circumstances of the child;

4. Hardship that may be caused by a retroactive award.

[9] Commencement Date for Retroactive Awards

The Court held that if a retroactive award is appropriate, that it should usually commence on the date of effective notice—the date when the recipient advised the payor that support should be paid or renegotiated. An earlier date may be appropriate if there is blameworthy conduct by the payor, but generally a retroactive award should not commence earlier than three years before notice was given. However, in cases of egregiously blameworthy conduct by the payor, an even earlier commencement date may be in order.

EVIDENCE

[10] Undisputed Facts

Although the parties disagree about a number of issues, there is no disagreement about most of the relevant facts in this case, which are set out below:

1. The parties never cohabited. They dated for a number of years, terminating their relationship some months before Brian was born.

2. Brian has always lived with and been cared for by Mother.

3. Father has never made child support payments to Mother.

4. Mother never asked Father to pay child support before directing her lawyer to send a letter requesting payments to him in August 2011.

5. Father is now married, and lives with his wife and their two children.

6. Father's income was $82,046 in 2008, $80,500 in 2009, $86,963 in 2010, and $94,683 in 2011. In the year of Brian's birth, Father's income was somewhat less than $47,000. There is no evidence as to his income in intervening years.

7. Father and his wife own a home, and Father has savings in an RRSP of approximately $100,000.

8. Mother is now married, and lives with her husband, their two children, his two children from a prior relationship, and Brian. Mother is currently unemployed, and drawing on savings of an unspecified amount. Her husband is employed.

9. Father has had very little contact with Brian. He had contact for a few months after the child's birth, and saw him briefly on a few occasions in the five years following. In 2005 at Mother's request he cared for the child for a week or two. He has not seen Brian since 2005.

[11] Disputed Facts

The points of disagreement are:

1. Did Father know that Brian was his child during all the years he did not pay child support? At Father's request, DNA tests were done in the fall of 2011 that confirmed his parentage. If Mr. Tran did not know that he was Brian's parent, that is a factor which might lead a court to find that his failure to pay any child support during the child's life was not blameworthy conduct.

2. Did Mother move with the child and prevent Father from having any contact with him after 2005? Father submits that she did, and argues that he should not have to pay retroactive support for a child whose whereabouts were unknown to him, a child whom his lawyer argues was effectively "abducted."

[12] Analysis Framework

I will address these disputed points in my analysis below, with reference to the factors set out in D.B.S.

ANALYSIS

Reason for the Delay

[13] Mother's Explanation for Delay

Mother delayed over eleven years in asking Father to pay child support. She says that, as an immigrant from Vietnam, she was unfamiliar with Canadian laws about child support. She also says that she feared that it would cost too much to go to court to obtain a support order.

[14] Limited Efforts to Pursue Support

Mother is frank in saying that between 2000 when Brian was born to August 2011, the only thing she did to pursue support was to contact Father's employer once, suggesting that Father should be "financially responsible" for the child. There is no evidence that Father's employer discussed the issue with him.

[15] Mother's Knowledge and Opportunities

I am satisfied that soon after the child's birth, Mother knew that Father had a financial obligation for the child's support, even though she may not have been aware of the specific provisions of the Child Support Guidelines. She urged Father's employer to make him fulfill his obligations. She twice retained lawyers and had those lawyers contact Father about issues concerning Brian—a travel authorization and a change of name. At those times she had an opportunity to obtain information about the Guidelines.

[16] Cost-Benefit Analysis

Scrutiny of Mother's evidence makes it clear that her delay in making a claim was not due to a lack of resources, but the result of a cost/benefit analysis. She calculated that the amount of support received might not justify her expenditure of money on legal fees.

[17] Lack of Reasonable Excuse

The Court in D.B.S. found that the recipient parent has an obligation not only to request support if it is not paid, but to pursue that request in a timely manner. The Court recognized that reasonable excuses exist for a failure by a parent to claim child support, such as justifiable fear of a payor's reaction, a lack of financial or emotional resources to bring the application, or inadequate legal advice. Those excuses are not offered by Mother. Mother's reasons for the delay are not in my view reasonable excuses for so long a delay in even asking Father to make payments.

[18] Weight of This Factor

Lack of a reasonable excuse for a delay in seeking support is not determinative of a claim, but it is a factor militating against a retroactive award.

Payor's Conduct

[19] Father's Position on Reliance

Father's position is that in choosing not to make support payments for Brian that he "quite reasonably relied upon the fact that no mention of child support had ever been made for a period of 10 years."

[20] Supreme Court's View on Reliance

The Supreme Court does not agree that such an assumption is reasonable. The Court held in D.B.S. that a parent has no legitimate reliance interest in a status quo under which no payments are made for a child's support when the potential payor would be required to make payments under the Guidelines. In such a circumstance, it is unreasonable for that parent to believe that he/she is fulfilling his/her obligations to support his/her children.

[21] Paternity and Prior Acknowledgment

Courts have found that a failure by a father to pay child support is not blameworthy conduct if he was unaware that he was the father of the child until the claim was made. That is not the case here. Although the Respondent raised questions about paternity when the Applicant made her support claim, he had never raised these doubts before and in the past acknowledged that he was Brian's father. The Respondent attended at the child's birth, and he is shown on the child's birth certificate as his father. The Respondent visited the child for a period of time, and even cared for him for a week or two in 2005.

[22] Abduction as a Mitigating Factor

Courts have also found that if a parent abducts a child, that the abduction is a factor that can militate against a retroactive claim for child support by the abducting parent. In A.A. v. G.G., 2010 ONSC 1261, the court denied such a claim made by a mother who had improperly taken the children to Egypt for 18 months, effectively preventing the father from having access during that time.

[23] Father's Situation Distinguished

Mr. Tran's situation is nothing like the father's in that case.

• Mr. Tran stopped visits with the child some months after his birth, because he did not want to have contact with Ms. Le.

• Ms. Le's evidence is that Mr. Tran made it clear soon after Brian's birth that he wanted nothing to do with him or her, and because of that she did not keep in regular contact with him.

• Although Mr. Tran now complains that Ms. Le did nothing to support his relationship with the child, his own evidence demonstrates that he did little or nothing to pursue that relationship.

• On Mr. Tran's own evidence, he occasionally saw the child during the five-year period after he terminated visits through contact with the maternal grandmother. Mr. Tran also cared for the child for a week or two in 2005; this was arranged by Ms. Le. There is no evidence that Mr. Tran pursued more frequent contact before that time.

• Mr. Tran's evidence that he asked Ms. Le for access after 2005 is contested by her, as is his claim that his contact with maternal grandmother was severed by a change in the grandmother's phone number.

• In any event, Mother's uncontested evidence is that Father knew where the maternal grandmother lived, that grandmother lived in the same place for 10 years after the child's birth, and that after 2005 Father did not contact grandmother (or herself) for any reason.

[24] Conclusion on Payor's Conduct

Father's conduct in never paying child support in any amount until Mother initiated this case is blameworthy conduct which militates in favour of a retroactive award.

Circumstances of the Child

[25] Limited Evidence of Hardship

The Court held in D.B.S. that a child's past and present circumstances are a factor to be considered when determining whether a retroactive award is appropriate. The evidence yields very little information about Brian's circumstances. I cannot find that he suffered because proper support was not paid in the past.

[26] Father's Allegations Regarding Mother's Spending

Father alleges that Brian will obtain no benefit in the future from a retroactive award, because Mother is a gambler and profligate with money. Mother vigorously contests this allegation, and there is no independent evidence supporting Father's claim. Mother says that if a retroactive award is made, that she intends to pay most of the award into an RESP for the child. She even suggests in her material that the court, if it makes a retroactive award, can provide that she be obligated to pay a part of the award into an RESP.

[27] Potential Benefit Through RESP

I accept that it is Mother's intention if she receives retroactive funds to put some of those funds into an RESP, even without an order. The funding of an RESP would be a benefit for Brian. However, as I have almost no information about the resources of her family, I cannot determine how significant that benefit would be. For example, I do not know whether the funds from such an award would be determinative as to whether Brian would be able to attend a post-secondary program.

[28] Weight of This Factor

In my view, this is a factor that provides some support for a retroactive award.

Hardship to the Payor

[29] Magnitude of Retroactive Claims

I have already on consent awarded retroactive support in an amount of $1,670 above. The further retroactive award claimed by Mother is substantial. If retroactive to the date of Brian's birth, it would total $64,731. If retroactive to August 1, 2008, three years before notice was given, it would total $25,039.

[30] Father's Financial Situation

Father submits that either award would cause hardship to him and his family, which includes his two other children. Father has a substantial income, some savings, and very little debt, other than a small credit card balance. Although I have information about Father's income and resources, I have no information about those of his wife, who also has an obligation to contribute to her own children's support. That information would be helpful in assessing his hardship claim.

[31] Weight of This Factor

In my view, this factor does not support the denial of a retroactive award, but should be taken into account in determining the amount of the award and terms of payment.

CONCLUSION

[32] Blameworthy Conduct Justifies Retroactive Award

Father's complete failure to provide support for Brian for eleven years, until this claim was made, represents blameworthy conduct on his part and justifies a further retroactive award.

[33] Determination of Commencement Date and Amount

What should be the commencement date and amount of that award?

[34] Award Should Not Date from Birth

I do not agree that the award should date from the date of Brian's birth. Although there have been occasional cases in which a court has found that it is reasonable to make an award retroactive for a much longer period than three years, I do not think that it is appropriate in this case because of Mother's unreasonable delay in making the claim, the absence of evidence that Brian suffered because of Father's conduct, and the likelihood that an award of almost $65,000 would cause hardship for Father's other children.

[35] Award Should Not Date from Three Years Before Notice

I do not agree with Mother's alternative position, that the award commence three years before the day she first requested child support. Both of Brian's parents failed in their duty to insure that the child received proper support. Mother's unreasonable delay in making her claim is a significant factor in my decision. Although Father's conduct in not making support payments prior to her claim was blameworthy, he did not engage in intimidation to obstruct the claim, and he made income disclosure when asked to by Mother's lawyer.

[36] Appropriate Retroactive Award

In my view, the appropriate award is in an amount of $14,000, representing the support that would have been paid by Father if he had fulfilled his responsibilities to Brian commencing January 1, 2010. Payment of this amount will cause Father some difficulty, but it is difficulty of his own making, and can be managed by the terms of payment that I set out below.

[37] Payment Terms

Father shall pay this award to Mother in four equal annual instalments of $3,500, commencing November 1, 2012, and continuing on November 1st of each year up to and including November 1, 2015. This sum shall bear interest as provided in the Courts of Justice Act, and can be prepaid in any amount at any time.

[38] Life Insurance Claim Dismissed

I dismiss Mother's claim that Father maintain a policy of life insurance, irrevocably designating her as the beneficiary in trust for the child. This court has limited jurisdiction to make such order. Mother advanced no evidence that would establish this jurisdiction, and her lawyer could provide no argument that the jurisdiction existed to make the order in this case.

[39] Costs Submissions

If costs are sought, the party seeking costs shall submit the claim by way of written submissions not exceeding five pages (excluding bill of costs and offer to settle) served and filed by October 12, 2012. Responding submissions with the same limit on length shall be served and filed by October 26, 2012.

Released: September 28, 2012

Signed: "Justice E.B. Murray"

Footnotes

[1] Walsh v. Walsh, O.J. 254

[2] E.g., Cougan v. Piche, 2004 SKQB 391

[3] Section 8 of the Children's Law Reform Act establishes a presumption of paternity in these circumstances.

[4] Covering the period between the date of effective notice in August 2011 to the commencement of the application in October 2011.

[5] Mother's lawyer calculated the amount of the retroactive claim by determining Father's income for each year by reference to income for the previous calendar year, an approach not rejected by Father. The only evidence of Father's income between 2000 and 2008 was his statement that he had earned "under $47,000" in 2000. Mother's lawyer premised his calculations on the assumption that Father earned at least $46,000 annually during those years, an assumption that Father did not challenge.