Court File and Parties

Court File No.: Brampton 694-98 Date: 2013-12-20 Ontario Court of Justice

Between: Amabilia Mischianti, Applicant

— And —

Andrew Hummel, Respondent

Before: Justice S.R. Clark

Motion re Retroactive Child Support

Heard on: December 10, 2013 Ruling released on: December 20, 2013

Amabilia Mischianti ........................................................................................ self-represented Andrew Hummel ............................................................................................. self-represented

CLARK, J.:

1:0 INTRODUCTION

[1] The applicant mother, Amabilia Mischianti (the mother) brings a Motion to Change (dated October 5, 2012) the final order (the order) of Mr. Justice Dunn, dated June 15, 1999, seeking an increase of child support retroactive to this original date.

[2] The order provides that the respondent father, Andrew Hummel (the father), pay $349.00 per month on annual income of $40,419.00 for the subject child, Emma, born September 30, 1996, presently age 17.

[3] The mother claims that although the order did not formally require it, the father has not provided a financial statement since 1999. She gave him notice of her request as early as 2002 and most recently in June, 2012, however he never responded. She believes he has worked for the same company since the date of the order, and has enjoyed annual salary increases. She was not in a position, financially, to retain the services of a lawyer and did not know what her rights were until she received information from a government website.

[4] The father, on the other hand, acknowledges his obligation to pay child support, but submits that his responsibility to do so extends back only 3 years, on the basis of the D.B.S. decision.

2:0 THE ISSUES

[5] The main issues are as follows:

1. Whether child support should be increased retroactive to the date of the order in 1999 or only a maximum of 3 years?
2. What should be the quantum of ongoing child support?

3:0 HISTORY OF THE PROCEEDINGS

[6] The matter first came before Justice Bovard on March 4, 2013, at which time a temporary order was made, on consent, requiring the father to pay an increased amount of child support, $498.00 per month, retroactive to December 1, 2012, without a determination of his current annual income. The Court also ordered him to serve and file all required income tax returns and notices of assessment, and any other financial documents showing his income from the date of the order to the present. Additionally, the Court ordered the mother to serve and file an affidavit explaining why she waited so long to bring the motion to change.

[7] The matter continued as a case conference before Justice Bovard on May 8, 2013. The father had not filed his required financial disclosure. He claimed he did not understand what he was required to do. The matter was, therefore, adjourned to June 21, 2013.

[8] On June 21, Justice Bovard attempted to resolve the matter with the parties, but to no avail. In the result, the motion to change was set down for hearing on September 25, 2013.

[9] On September 25, the Court did not have sufficient time to hear the motion. It was adjourned to October 7, 2013.

[10] Unfortunately, the matter could not proceed again on October 7. The file could not be located. In any event, the father was concerned that Justice Bovard had expressed an "opinion" on the merits of the motion to change. He therefore ordered that the matter be heard by another jurist.

[11] It then came before this Court on December 10, 2013. Oral submissions were made on the motion to change. The ruling was reserved.

4:0 THE POSITIONS OF THE PARTIES

4:1 The Mother

[12] She filed two letters which had been sent to the father, requesting that they revisit the child support amount as there had been no change since 1999. She received no response from him. She also made a number of verbal requests over the years, similarly with no response. The most recent request was made in June of 2012 in a letter sent by registered mail. Again, there was no response.

[13] She explained she did not have the money to hire a lawyer to represent her at the time. She tried to deal with it on her own.

[14] The first letter she sent, dated December 27, 2002, provides, inter alia, as follows:

"Lastly, Please provide a copy of your last pay statement for 2002. The support agreed upon was based on your 1998 earnings. It is time for a review."

"Should you have any questions please feel free to address them in writing."

[15] The second letter sent, dated June 18, 2012, provides as follows:

"As per our separation agreement filed in March, 1997 sections 7.0 and 7.4;

Please complete the enclosed Financial Statement (Form #13) in order to determine if an adjustment to child support is necessary.

Please complete and return by July 18/2012 to:

1207-5 Ann Street Mississauga ON L5G 3E8

Thank you."

[16] In her affidavit, sworn August 2, 2013, she indicated that for the last 13 years she has been a single parent. After covering the cost of rent, groceries and items required for school, her resources at the end of the month are limited and she often finds it difficult to cover the cost of basic necessities. As a result of her lack of resources, she has incurred debts in excess of $13,000.00 by billing basic necessities to her credit card.

[17] She finally came across a self-help guide listed on the Government of Ontario's website on how to change the existing order. She began this process in October, 2012.

[18] She calculates that the amount of child support owing from the date of the original order is a total of $23,339.88.

[19] In her oral submissions made on December 10, 2013, she indicated that Emma has missed out on being involved in a number of extra-curricular activities because of the lack of funds. She explained that she had to obtain a loan to cover Emma's and her basic needs. She described that she hasn't exactly been living the "high life", and it has not been a happy time. She has been a single parent for 18 years. She has no current partner or boyfriend.

[20] She acknowledges she could have done more to inform herself about this issue, but did not think she could do so or proceed without a lawyer. In any event, she submits it was not her sole responsibility to remind the father to pay more support as his income increased over the years. He lived with his own mother for an extended period of time, which must have allowed him to save a substantial amount of money which now ought to go toward increased child support payments.

4:2 The Father

[21] His affidavit, sworn September 1, 2013, in response to the Motion to Change, indicates that he responded verbally to the 2002 letter, explaining he was amenable to a review of his earnings, but wanted to negotiate shared expenses for access since she and Emma had now moved from Kitchener to Port Credit. He did not hear anything further from her, however. He continued to drive back and forth on alternate weekends over the last 16 years, totalling 8,500 miles per year. He has paid for many other expenses over the years. Emma would not have attended her grade 8 class trip to Quebec City, for example, nor would she have had a grade 9 school uniform if not for him. He purchased a cell phone and plan for her. He has covered this cost of $80.00 per month since she has been in grade 9. He has also opened up a bank account for her and has contributed almost $4,000.00 to it since January, 2010. He heard nothing from the mother about increased child support until June, 2012.

[22] He agrees to 3 years of retroactive child support from December 1, 2009 to December 1, 2012 in a fixed amount of $6,913.20 in accordance with the decision in the case of D.B.S. He is willing to pay $200.00 per month toward the arrears in addition to the ongoing current amount.

[23] He has filed a financial statement, sworn April 30, 2013. His current annual income is $60,324.00.

[24] His total income for all relevant years from his income tax returns sets out the following:

• 1999 - $40,917.00
• 2000 - $48,938.00
• 2001 - $50,363.00
• 2002 - $54,723.00
• 2003 - nothing filed
• 2004 - $50,575.53
• 2005 - $53,303.00
• 2006 - $57,282.00
• 2007 - $54,868.00
• 2008 - $60,788.00
• 2009 - $49,804.00
• 2010 - $59,441.00
• 2011 - $58,723.00
• 2012 - $60,324.00

[25] In his oral submissions made on December 10, 2013, he expressed the view that this has been a long ordeal. He has been to Court 7 times. He would like this matter to be finalized. He, too, has been a single parent these last several years. Only having access to Emma 4 days a month is not enough. He has borne all travel expenses when exercising access all these years. He has also purchased other items for Emma as she needed them. Although he did live with his mother for a period of time, he has not done so in the last 12 years. Furthermore, his elderly father is now in a nursing home. He assists financially in this regard.

5:0 ANALYSIS

[26] The Court clearly has jurisdiction to order retroactive child support payments. The leading decision in this area is D.B.S. and S.R.G. v. T.A.R. and L.J.W., 2006 SCC 37, 2 S.C.R. 231, hereinafter referred to as D.B.S.

[27] The majority decision of the Supreme Court of Canada underlined two principles, namely that both parents have an obligation to ensure their child receives the appropriate amount of support in a timely manner, and when the Court is considering a retroactive claim, it must balance the payor's interest in relying on the status quo with the need for fairness and flexibility.

[28] The Court set out 4 factors to be considered as follows:

1. The reason for the delay in bringing the claim;
2. The conduct of the payor;
3. The circumstances of the child; and
4. Any hardship that may be caused by a retroactive award.

[29] None of these factors is decisive. The Court should strive for a holistic approach.

[30] A claim should be calculated as of the date of "effective notice". This means, in the circumstances of the present case, when the mother indicated that an increase in child support was requested. The Court must then consider that unless the father has demonstrated bad faith or blameworthy conduct, the award should not be more than 3 years before formal notice.

[31] The ultimate goal is to ensure that a child benefits from the support she is owed at the time. Therefore, any incentive for a payor parent to be deficient in meeting this obligation should be eliminated.

[32] Having regard to these 4 factors, the Court finds as follows:

1. Delay

An unreasonable delay in seeking support militates against a retroactive order. However, the Court must bear in mind that support is the right of the child and cannot be waived by parental agreement or inactivity. Therefore, the Court should not hesitate to find a reasonable excuse for the delay where the mother may have lacked the financial or emotional means to bring an application. It seems she knew well enough in 2002 that she wanted to revisit this issue, which is what prompted her to send a letter. However, when he did not respond the only realistic conclusion is that she did not pursue the matter further, likely because she did not want to "rock the boat", and in any event, she may have been convinced that there was merit to the father having to bear further travel expenses. Put another way, the Court concludes that the mother was prepared to "let sleeping dogs lie".

That said, the June, 2012 letter is a different story. First of all, it was registered, which must have signified to the father that this was about as formal a way one could be put on notice short of receiving actual Court papers. In any event, he acknowledges his responsibility to pay retroactive child support, albeit from December 1, 2009.

The Court finds that effective notice was provided in June, 2012.

2. The Conduct of the Payor

The Court is entitled to take an expansive view of what constitutes blameworthy behaviour. This is anything that privileges the payor's own interests over the child's right to an appropriate amount of support. The payor cannot mislead the recipient into believing child support obligations are being met when they are not. Although a payor who does not automatically increase his payments to reflect his increased income is not necessarily engaging in blameworthy conduct nonetheless, in the circumstances of this case, the father must have obviously known what his obligation was. His salary increased incrementally, but steadily over the relevant years (except in 2009). He worked for the same company. There was never a time where his income was anything less than the amount on which the original order was made ($40,419.00).

Accordingly, the Court finds that the father should have paid more. Notwithstanding his added travel expenses, he was not free to decide how his child support obligation would be discharged.

3. Circumstances of the Child

The Court must consider present and past circumstances. There is no evidence to suggest that Emma has already enjoyed all of the advantages she would have enjoyed if the father had been properly supporting her. Furthermore, there is no suggestion that she is currently enjoying a relatively high standard of living. It is a core principle that her standard of living should approximate the standard she might have enjoyed had the parents been together.

The evidence in this case suggests that Emma has been deprived as a result of the lack of child support. The mother has clearly not enjoyed a particularly high standard of living, and by inference, Emma has not enjoyed the financial benefits to which she was otherwise entitled.

4. Hardship for the Payor

Fairness is the watchword for any balancing of competing interests. Although the father has incurred greater travel expenses over the years, and although he makes a financial contribution to the needs of his own father, he is not entitled to forsake the primary responsibility he knew he had.

Quite frankly, he should consider himself fortunate that retroactive child support is not going back more than 3 years from June, 2012.

The Court finds there has been no unfair burden placed on him with an additional debt for which he did not have a chance to address or budget. That said, the Court appreciates that he should be able to move on in his life and should not necessarily be left in a state of perpetual financial hardship, thereby leaving little incentive to comply with Court orders. Any hardship in paying arrears of child support, however, can be attenuated by ordering reasonable monthly payments.

6:0 CONCLUSIONS

[33] Retroactive child support shall be effective July 1, 2009, the month following the date of formal notice. Therefore, the father shall be responsible for table amount payments on annual income of $49,804.00 for the last 6 months of 2009.

[34] For 2010, he shall pay table amount on annual income of $59,441.00.

[35] For 2011, he shall pay table amount on annual income of $58,723.00.

[36] For 2012, he shall pay table amount on annual income of $60,324.00.

[37] For 2013, he shall pay table amount on annual income of $60,324.00.

[38] Ongoing child support as of January 1, 2014 shall be the table amount on $60,324.00.

[39] He will also be required to pay at least $200.00 per month for arrears of child support, commencing January 1, 2014. The Court has calculated that the arrears for the relevant time periods total $28,908.00. The ultimate amount owing for child support arrears will be determined, however, by the Family Responsibility Office, once proper credit has been given for all child support payments already made over these same time periods, and subject to consideration of any other costs or other administrative calculations.

7:0 ORDER

[40] The Court makes the following final order:

1. Term 2 of the final order of Justice Dunn, dated June 15, 1999, is varied as follows:

(a) The respondent father, Andrew Hummel, shall pay retroactive child support to the applicant mother, Amabilia Mischianti, on behalf of the child, Emma Hummel, born September 30, 1996, in the following amounts:

(i) From July 1, 2009 to December 31, 2009, $460.00 per month on annual income of $49,804.00.

(ii) From January 1 to December 31, 2010, $552.00 per month on annual income of $59,441.00.

(iii) From January 1 to December 31, 2011, $534.00 per month on annual income of $58,723.00.

(iv) From January 1 to December 31, 2012, $549.00 per month on annual income of $60,324.00.

(v) From January 1 to December 31, 2013, $549.00 per month on annual income of $60,324.00.

(b) The Family Responsibility Office shall make all the necessary and appropriate adjustments to their records, giving credit for all child support payments paid over this same time period.

(c) The said father shall pay ongoing child support to the said mother, on behalf of the said child, commencing January 1, 2014, in the amount of $549.00 per month on annual income of $60,324.00.

(d) In addition to ongoing monthly child support payments, commencing January 1, 2014, the said father shall pay a minimum of $200.00 per month toward the outstanding arrears until fully paid.

(e) The parties shall exchange financial disclosure annually including sworn financial statements, copies of income tax returns, notices of assessment and notices of reassessment, if applicable, by July 1st of each year, commencing in 2014.

2. This matter may be brought back before Clark J. should there be any necessity to clarify or fix the net amount of the arrears.

Released: December 20, 2013

Justice S.R. Clark