Court File and Parties

Court File No.: Brampton 1663/13 Date: 2014-10-10 Ontario Court of Justice

Between: Shane Forbes, Applicant

— AND —

Miriam Kodric-Almeida, Respondent

Before: Justice S.R. Clark

Motion to Change the Terms of a Separation Agreement for Child Support

Motion heard on: September 26, 2014 Ruling released on: October 10, 2014

Counsel:

• Shane Forbes ......................................................... self-represented
• Miriam Kodric-Almeida ............................................. self-represented

Decision

CLARK, J.:

1:0 INTRODUCTION

[1] The respondent mother, Miriam Kodric-Almeida (the mother) brings a Motion to Change the terms of a Separation Agreement (the Agreement), dated January 21, 1998, regarding child support.

[2] The date of the Motion to Change is December 18, 2013.

[3] She seeks an increase in ongoing as well as retroactive child support for the last 5 years[1], to October 1, 2010, for the subject child, Andrew (the child) born November 14, 1997, presently age 16.

[4] She also seeks a 50% contribution for s.7 expenses for the year 2014, and into the future.

[5] She and the applicant father, Shane Forbes (the father) never lived together. They entered into the Agreement on January 21, 1998. It was very basic and straightforward. The sole term related to the father agreeing to pay support in the amount of $200.00 per month until the child turned 18 unless enrolled in a full-time education program; he turned 16 or older and withdrew from parental control; he ceased to reside with the mother; or he married. No annual income figure was provided by either party.

[6] The Agreement was filed with the Family Responsibility Office.

[7] The mother has sole custody. Access was to be supervised at her discretion.

[8] The father has had no relationship at all with the child since birth.

[9] The father filed a Response, dated January 21, 2014, to the Motion to Change. He asserts the following:

• He has made all payments in accordance with the Agreement.
• He is now prepared to pay increased ongoing child support as of February 1, 2014 in accordance with the guideline amount, based on his annual income of $71,152.20.
• He is not prepared to pay retroactive child support as he was never given notice of this claim until the Motion to Change was brought.
• He is only prepared to pay his share of s.7 expenses if consulted beforehand and upon being presented with invoices or receipts.
• He is also seeking costs.

2:0 THE ISSUE

[10] The sole issue is whether the mother is entitled to retroactive child support for 5 years, 4 years, or at all.

3:0 THE POSITIONS OF THE PARTIES

3:1 The Mother

[11] Her position is that the father has failed to disclose his income over a number of years, thereby neglecting his obligation to financially support the child.

[12] She was originally seeking retroactive child support and s.7 expenses for a period of 5 years, but understands that the current case law may only entitle her to 3 years of retroactive payments.

[13] If any payments cause a financial hardship to the father, she would be agreeable to an arrangement where the money owed could be paid in installments over time.

[14] S.7 expenses accumulated to date include educational tutoring ($1,432.60); orthodontic services (braces)($2,500.00); and swimming lessons ($1,020.89). She is seeking to be reimbursed for 50% of these expenses, which is $2,476.74. On an ongoing basis, she is asking for a 50% contribution as well. She is prepared to provide the necessary documentation, including receipts and invoices.

[15] She acknowledges that this was never a healthy relationship between them.

[16] She stated in her oral submissions that at one point, the father said something to her that was quite disturbing. She felt concern for her safety and the safety of the child. This is why she did not contact him thereafter about the child support issue. She decided that she would raise the child on her own.

[17] She acknowledged that she had some financial assistance from family and friends. However, it reached a point where she could not save for any of the child's future expenses.

[18] She is employed with the Toronto Police Service, as is the father. Although she could have contacted him, she submits that this should not be a bar or limitation to seeking retroactive child support. She asks the Court to consider that her "wrongdoing" (to use her word) in not raising this issue with the father earlier should not result in the child suffering because of this.

[19] She submits that it was equally up to the father to notify her of increases in his finances.

[20] She also asks the Court not to consider any "hardship" claimed by the father, regarding expenses for his new family. She submits that everyone has expenses. The father should take care of all of his legal responsibilities and his children equally.

[21] When she approached him about paying for the child's braces, he declined to do so, even though it could have been readily dealt with under his benefits plan. However, he did not want to pay 50% of the cost. This is why she had to pay for it on her own.

3:2 The Father

[22] He met the respondent when they were both in high school. They began dating in or around February, 1996, which continued for approximately 1 year.

[23] After the child's birth, they dated off and on for approximately 6 months. The relationship came to an end in the summer/fall of 1998, prior to the child's first birthday.

[24] They decided to permanently terminate the relationship. They entered into the Agreement on January 21, 1998.

[25] They parted ways after this. He broke all ties with her and the child.

[26] He is currently married and has one child, who is now approximately 1½ years old. He has another child on the way.

[27] He explained that he and the mother did not speak to one another for many years after their separation. Approximately 10 years ago, she joined the Toronto Police Service. They have come into contact with one another at work on several occasions. Each time, they exchanged pleasantries and acted cordially with one another.

[28] He explained that he was quite shocked to have received the Motion to Change documents on or around December 23, 2013, as the mother had never approached him or discussed changing the quantum of support. The only time she ever spoke to him at all was shortly after she began working with the Toronto Police Service. She asked him to include the child as a dependant on his benefits package. He complied with this request. Nothing was ever said, however, about child support.

[29] He is now willing to pay $648.00 per month, the table amount on his anticipated 2014 income of $71,152.20. His materials set out that he is prepared to pay until the child turns 18, which is the age of majority. Given the fact that he does not have a relationship with him and that they are essentially strangers to one another, it is his position that his obligation should terminate once the child turns 18.

[30] He submits that the mother never approached him about making a contribution for the orthodontic services. Otherwise, he could have made the necessary arrangements to have some of these costs covered through his benefits package.

[31] Essentially, it was made very clear to him from the outset that the mother wanted to "go it alone", and raise the child by herself.

[32] He submits further that it is also unfair for her to say that she was unable to contact or reach him. Given her level of sophistication and intelligence, finding him would have been straightforward. Not only did they work within the same organization, but her opportunity to access the Toronto Police Service website was always available to her.

[33] Furthermore, had he been approached in a more timely manner, he would have been prepared to be reasonable with her. He was in a much better position financially then, than he is now. He has another family.

[34] He strongly disagrees with the mother's position that he was avoiding her or was unreachable. If he was hiding at all, which he denies, he characterized it as "hiding in plain sight".

[35] He believes that the mother is now seeking compensation for the mistakes and decisions that she made about raising the child on her own.

[36] He asks the Court to note that the draft term in the Agreement about annual index increases to child support was crossed out. There was no requirement or obligation for either of them to provide ongoing financial disclosure. This supports his position that he had absolutely no idea about guideline table amounts, as he was never required to use them or adhere to them. The first time he knew anything about this support issue was in December, 2013. He also asks the Court to note that the guideline support tables came into effect after the date of the Agreement. This is why he had no reason to have investigated this on his own.

[37] Furthermore, he submits that he has never been asked or directed by anyone in the Family Responsibility Office to follow the guidelines, or to do anything other than what he has been doing all along without fail for 16 years.

[38] In summary, he submits that if the mother was really concerned about ongoing child support she had every opportunity to have contacted him to discuss this, but never did.

4:0 ANALYSIS

4:1 Retroactivity – General Principles

[39] When addressing the issue of retroactivity, in essence, the Court is simply enforcing a pre-existing parental obligation to pay child support in an amount that ought to have been, but was not paid in the past.

[40] The essence of the exercise is to ensure that children benefit from the support they are owed at the time when they are owed it.

[41] The law, therefore, tries to eliminate any incentives for a payor parent to be deficient in meeting his or her obligation.

[42] Retroactive awards cannot be simply regarded as exceptional orders to be made in exceptional circumstances.

[43] While the propriety of a retroactive order should not be presumed, it should not only be found in rare cases either.

[44] In each case, the Court is being asked to reconcile two competing interests. The first is the concept that unreasonable delay by a recipient parent in seeking an increase in support will militate against any such order. The second is that blameworthy conduct by the payor will have the opposite effect.

[45] Any order should, generally, be retroactive to the date when the recipient parent gave the payor parent effective notice of his or her intention to seek an increase in support payments. This date represents a fair balance between certainty and flexibility.

[46] Courts must be open, however, to ordering retroactive support where fairness to children dictates it, but should also be mindful of the certainty that fairness to payor parents often demands. It is only after a detailed examination of the facts and circumstances of each case that a determination of retroactive support can be evaluated.

[47] Where parents have entered into an Agreement, the expectation is that the child support obligations have been fully defined. Although the terms are given considerable weight where they form part of a comprehensive settlement that has due regard to child support, courts may still order retroactive support where the circumstances have changed, or never were as they appeared when the Agreement was signed.

[48] From the current case law (D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37), the Court has identified 4 main factors to consider as follows:

1. Delay.
2. Conduct of the payor.
3. Circumstances of the child.
4. Hardship occasioned by retroactive award.

[49] None of these factors is decisive because the Court should strive for an holistic view of the overall circumstances of the particular case.

(1) Delay

[50] An unreasonable delay in seeking support militates against a retroactive order. Courts should not hesitate, however, to find a reasonable excuse for the delay where the recipient harbours fears about a vindictive response from the payor, or perhaps lacks the financial or emotional means to bring an Application, or was perhaps given inadequate legal advice.

(2) Conduct of the Payor

[51] Blameworthy conduct is an important factor to consider in determining the propriety of a retroactive award. It should be accorded an expansive definition that encompasses conduct where the payor seeks to promote his own interests at the expense of a child to whom he owes a support obligation.

[52] Parental intimidation, or the hiding of income, or wilful misrepresentations that induce an erroneous belief in the other parent that the payor is contributing as much as he can are obvious examples of blameworthy conduct.

[53] However, it may also exist where the payor knowingly chooses to ignore his child support responsibilities.

[54] While one who does not automatically increase his child support payments to reflect his increased income is not necessarily engaging in blameworthy conduct, other objective factors can be considered to determine whether he had a reasonable belief that he was meeting his obligation.

[55] The presumption that a payor is presumed to be acting reasonably by conforming to the terms of an existing order or Agreement may be rebutted by a material change of circumstances that renders the Agreement no longer reasonable in light of his increased ability to pay child support.

(3) Circumstances of the Child

[56] The Court should have regard to the circumstances of the child as they existed at the time of the Application as well as the circumstances as they existed when the support should have been paid.

[57] However, a child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than a child who is currently in need.

(4) Hardship occasioned by retroactive award

[58] Although s.10 of the Federal child support guidelines sets out the impact of undue hardship in determining prospective child support obligations, a broad consideration of hardship is appropriate in determining whether retroactive child support is justified.

[59] Because retroactive awards are based on past income, rather than being linked to what the payor can currently afford, they can lead to hardship, which may extend beyond the payor to new family members.

[60] While hardship to the payor may be of less concern where it results from his blameworthy conduct, it is an important consideration where it is unrelated to same.

[61] Courts should attempt to craft retroactive orders that will minimize hardship and may do so by ordering deferred or periodic payments, rather than immediate lump sum payments.

4:2 The Principles Applied

4:2.1 Delay

[62] The mother's reasons for the delay in bringing the Application are still rather vague and not completely explained. It more likely than not, however, that her failure to act with dispatch is because she was satisfied with the terms of the original Agreement and it was not a necessity or priority for her to seek to change it.

4:2.2 Conduct of the Payor

[63] Although entitled to take an expansive view of what constitutes blameworthy behaviour, the Court finds that this is not a situation where the father put his own interests ahead of the child's. He did nothing to avoid contact with the mother. Furthermore, he never made any misrepresentations to her. The Court accepts the father's position that he was not "hiding". The mother's determination to "go it alone" was sufficient for her purposes, and those of the child.

4:2.3 Circumstances of the Child

[64] The Court must consider the present and past circumstances. A child who has gone through hardship due to not being properly supported may be compensated. The argument is less convincing, however, when the child has enjoyed some advantages, and has not been deprived as a result of the lack of child support. What seemed to trigger the mother's motivation to bring the Application was because she started to realize that it would be difficult to amass savings in the future for the child. Although it is fair to conclude that this isn't likely the only reason why the Application was brought, this is not the purpose of retroactive child support. The mother's concerns, financially, are prospective and not retrospective in nature.

[65] Although a case can perhaps always be made that more money would have facilitated and provided more advantages for the child, it seems that the mother was able to obtain the necessary funds from other family members and other sources to address any such needs. This was a decision she made as a "trade-off", knowing that she had the child all to herself and that the father would never interfere in the child's upbringing, other than providing that which he undertook to pay according to the term of the Agreement.

4:2.4 Hardship for the Payor

[66] When a payor chooses to assume new and further responsibilities, he does not shed his previous obligation with impunity. His obligation remains to make appropriate financial sacrifices to meet all of his responsibilities.

[67] However, in the circumstances of the present case, the father did not forsake that which he clearly understood. He continued to pay the required quantum of child support continuously for 16 years.

[68] What has now occurred is that an unfair burden has been placed on him with the potential of an additional debt for which he did not have a chance to address or budget.

[69] Accordingly, the Court is prepared to place some weight on the hardship that would be occasioned by a retroactive award.

5:0 CONCLUSION

[70] Balancing these 4 factors, the Court is not satisfied that this is an appropriate case to order retroactive child support or s.7 expenses.

[71] Since formal notice was given by the respondent in December, 2013, child support payments going forward shall commence on the first of January, 2014.

6:0 ORDER

[72] The Court makes the following final order:

1. Paragraph 2(b) of the Separation Agreement, dated January 21, 1998 is varied as follows: the applicant father, Shane Forbes, shall pay child support to the respondent mother, Miriam Kodric-Almeida, on behalf of the child, Andrew Kodric, born November 14, 1997, in the amount of $648.00 per month on annual income of $71,152.20, commencing January 1, 2014. Child support payments shall continue to be paid until the child turns 18 years of age unless enrolled in a full-time program of education; the child turns 16 years of age or older and withdraws from parental control; the child ceases to reside with the respondent, or the child marries.

2. No s.7 expenses for the year 2014 are payable.

3. As of January 1, 2015, the said applicant father shall pay 50% of all s.7 expenses, as agreed, and upon being presented with invoices and/or receipts.

4. The parties shall exchange financial disclosure annually, including copies of income tax returns, notices of assessment, and re-assessment on or before June 1st of each year, commencing in 2015.

5. There will be no order for costs.

6. A support deduction order shall issue.

Released: October 10, 2014

Justice S.R. Clark

[1] Her claim for retroactivity should actually be 4 years, not 5.