Court File and Parties

Court File No.: D71821/14 Date: 2015-07-07

Ontario Court of Justice

Between:

APRIL GREEN Acting in Person APPLICANT

- and -

COLLIS RONDEL MONAH Acting in Person RESPONDENT

Heard: July 6, 2015

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This trial was about the respondent's (the father) child support obligations for the parties' 5-year-old child (the child).

[2] In her application, the applicant (the mother) sought child support retroactive to the date of the child's birth. During the trial, she moderated this request – asking that child support be retroactive to January 1, 2012. The mother's retroactive support request included a claim for the father to contribute his proportionate share of the child's childcare expenses pursuant to section 7 of the Child Support Guidelines (the guidelines).

[3] The father's position was that he should only be required to pay child support starting on January 1, 2015.

Part Two – Background Facts

[4] The father is 35 years old. The mother is 34 years old.

[5] The parties had the one child together.

[6] The parties have never lived together.

[7] The child has always lived with the mother. The father presently visits the child at the Toronto Supervised Access Centre.

[8] The mother lives with her fiancé and the child.

[9] The father lives with his mother, who is 68 years old and is retired. The father deposed that his 17-year-old daughter from another relationship came to Canada from Guyana two weeks ago. She will be living with him and hopes to go to college to attend a nursing program.

[10] The mother is steadily employed as a sales representative and earns about $65,000 per annum. Her fiancé earns a similar level of income.

[11] The father is steadily employed as a machine operator and earns about $43,700 per annum.

[12] The father paid the mother $630 in child support in 2010.

[13] In March of 2011, the parties agreed to set up a separate bank account for the child. The father was to pay his child support into this account. The father only made one support payment for $200 on April 5, 2011.

[14] The father made no further child support payments until after the mother started this case.

[15] The father was convicted of trafficking in drugs and was imprisoned in the United States from May of 2011 until October of 2012. He resumed working in Canada in December of 2012.

[16] The mother issued this application on October 15, 2014.

[17] On January 9, 2015, on consent, the father was ordered to pay the mother temporary child support of $397 per month. The mother deposed that she received her first support payment in June of 2015.

Part Three – Retroactive Support

3.1 Legal Principles

[18] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:

1. Reasonable excuse for why support not considered earlier.
2. Conduct of the payor parent.
3. Circumstances of the child.
4. Hardship occasioned by the retroactive order.

[19] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.

[20] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).

[21] Effective 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 (D.B.S., par. 121).

[22] Retroactive awards are not exceptional. They can always be avoided by proper payment. (D.B.S., par. 97).

[23] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. (D.B.S., par. 123).

[24] Courts ordering a retroactive award must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable Tables is not required – nor is it recommended (D.B.S., par. 128). Courts can affect the quantum of retroactive awards by altering the time period that the retroactive award captures. While the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award. Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case (D.B.S., par. 130).

[25] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 221 (Ont. C.A.).

[26] The D.B.S. principles also apply to retroactive claims for section 7 expenses. See: Smith v. Selig, 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. S.C.J.).

3.2 Analysis

3.2.1 Reason for Delay in Bringing Application

[27] The mother only partially provided a reasonable explanation for her delay in seeking child support. She deposed that the father paid some child support in 2010 and she wanted to encourage him to have a relationship with the child. She felt that if she sought the appropriate amount of support from the father, he would likely withdraw from the child's life. The mother was encouraged, she said, when the father agreed to set up the bank account for the child in March of 2011 and made the first payment. However, he soon stopped making payments and seeing the child.

[28] The mother did not provide a reasonable explanation for delaying her application for support after it became apparent that the father was not going to be paying child support or seeing the child. This was or should have been apparent even before the father was imprisoned.

[29] The mother candidly admitted that her motivation for coming to court in October of 2014 had little to do with child support. The father, after a long absence, had attended at the child's school, alarming the mother. The mother primarily started the court case to obtain a custody order and restrictions to the father's access. She has been successful in these requests.

[30] Although the mother broached the topic of support at an early stage, there was a prolonged period of inactivity in pursuing support after effective notice was given.

3.2.2 Conduct of the Father

[31] The father has engaged in blameworthy conduct. He has been aware of his child support obligations and has not come anywhere close to meeting them. He has preferred his own interests to those of the child.

[32] The father deposed that he did not pay child support because the mother dissuaded him from seeing the child. He said that she rejected any support that he or his family offered. The mother provided compelling evidence that she did try to involve the father in the child's life. The father provided no documentation or any details about support offered to the mother. His evidence was not credible.

3.2.3 Circumstances of the Child

[33] The mother testified that she has always ensured that the child's needs are well taken care of. She has enrolled the child in many activities. The mother has been financially disadvantaged taking on this financial responsibility without any meaningful contribution from the father.

3.2.4 Hardship Occasioned by a Retroactive Order

[34] The father claims that a retroactive award will cause him hardship. The evidence does not support this claim. The father has made financial choices that reveal that supporting the child has been a very low priority for him. He deposed that he recently spent close to $5,000 to bring his daughter to Canada and to do home repairs. He spent this money realizing that this trial had been set and his retroactive support obligations were in issue.

[35] The father has access to capital. He jointly owns a condominium with his mother. His evidence about the value of this property was inconsistent. At trial, he estimated the value of this property at about $300,000. In his financial statement sworn on June 22, 2015, he valued the property at $210,000 (it was not stated if this was the full value of the property or his 50% share). At trial, the father said there is a mortgage of "100 something" on the property. In the financial statement, he deposed that the mortgage was $132,000.

[36] The mother also provided evidence (including photographs) of the father driving four different luxury vehicles. The father merely claimed that he didn't own the vehicles.

[37] The court considered that the father now has another support obligation. The extent of that obligation is uncertain. The father did not provide evidence that his daughter was enrolled in school – he said that he was "looking into it". The father claimed that his daughter's mother will not be supporting her. He said it was too difficult to convert money from Guyana.

3.2.5 Retroactive Order

[38] Balancing all of the D.B.S. factors, the court will require the father to pay child support to the mother (including her claim for section 7 expenses) retroactive to January 1, 2013.

Part Four – Section 7 Expenses

[39] The mother is asking that the father pay his proportionate share of the child's childcare expenses pursuant to section 7 of the guidelines.

[40] In awarding section 7 special and extraordinary expenses, the court calculates each party's income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of section 7 of the guidelines, determines whether the claimed expenses are necessary "in relation to the child's best interests" and are reasonable "in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation." Finally, the court then applies any tax deductions or credits. See: Titova v. Titov, 2012 ONCA 864.

[41] The relevant provision of the guidelines reads:

7. (1) In child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

[42] The childcare expense falls within clause 7(1)(a) of the guidelines.

[43] The childcare expenses have been incurred as a result of the mother's employment.

[44] The mother provided unchallenged evidence that she has been paying $7,000 per annum for childcare expenses since January 1, 2013. The mother is properly deducting these expenses in her income tax returns.

[45] The childcare expenses are reasonable and necessary.

Part Five – Incomes of the Parties

[46] The mother earned $57,200 in 2013 and $64,000 in 2014. The mother testified, and the court accepts, that she will earn about $65,000 in 2015.

[47] The father earned $42,000 in 2013 and $43,715 in 2014. The father testified, and the court accepts that he will earn about the same amount of money in 2015 that he earned in 2014.

[48] The court sees no reason why it should deviate from the guiding principle in subsection 7(2) of the guidelines that the parties should contribute to a section 7 expense in proportion to their respective incomes.

Part Six – Support Calculation and Arrears Payment

[49] A software analysis (that calculates the father's proportionate share of the section 7 expenses after applying any tax deduction or tax credit) shows that the father's child support obligations are as follows:

2013

• Table amount: $379 per month
• Section 7 expense: $163 per month
• Total: $542 per month
• Amount owing for 2013 ($542 × 12) = $6,504

2014

• Table amount: $395 per month
• Section 7 expense: $156 per month
• Total: $551 per month
• Amount owing for 2014 ($551 × 12) = $6,612

2015

• Table amount: $395 per month
• Section 7 expense: $154 per month
• Total: $549 per month
• Amount owing for 2015 ($549 × 7 months) = $3,843

Total amount owing = $16,959

[50] The father will be credited with any child support paid in 2015 as reflected in the records of the Family Responsibility Office.

[51] The father can and should obtain additional financing on his home to pay the outstanding arrears. He will be given 60 days to make this payment.

Part Seven – Conclusion

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

a) The father shall pay the mother the guidelines table amount of child support for one child, based on his 2013 income of $42,000, in the sum of $379 per month for 2013. In addition, he shall pay the mother his proportionate share (41.8%) of the child's childcare expenses in the sum of $163 per month for 2013.

b) The father shall pay the mother the guidelines table amount of child support for one child, based on his 2014 income of $43,715, in the sum of $395 per month for 2014. In addition, he shall pay the mother his proportionate share (40.1%) of the child's childcare expenses in the sum of $156 per month for 2014.

c) The father shall pay the mother the guidelines table amount of child support for one child, based on an annual income of $43,715, in the sum of $395 per month starting on January 1, 2015. In addition, he shall pay the mother his proportionate share (39.5%) of the child's childcare expenses in the sum of $154 per month starting on January 1, 2015.

d) The father shall be credited for any child support paid to date in 2015, as reflected in the records of the Family Responsibility Office.

e) The father's support arrears are fixed today at $16,958, subject to any adjustment for child support paid to the Family Responsibility Office in 2015, as reflected in its records. The balance owing shall be paid to the mother in 60 days.

f) The parties shall, starting in 2016, annually provide the other by June 30th with copies of their income tax returns and notices of assessment. The mother shall also provide the father with proof of her annual childcare expenses.

g) A support deduction order shall issue.

h) Nothing in this order precludes the Family Responsibility Office from collecting support arrears from any government source, such as HST or income tax refunds, or lottery or prize winnings.

i) The Family Responsibility Office is requested to amend their records to be in accordance with the terms of this order.

[53] Copies of the software calculations will be provided to the parties with this decision. The parties may make submissions about any mathematical or software inputting errors in this decision by July 21, 2015. Any submissions should be on notice to the other party, be in writing and be delivered to the trial coordinator's office on the second floor of the courthouse. The other party will then have seven days to respond in writing to any such submissions.

[54] If the mother wishes to seek costs, she shall serve and file written submissions by July 31, 2015. The father will then have until August 14, 2015 to serve and file a written response to these submissions. The written submissions are not to exceed 2 pages. The submissions should be filed at the trial coordinator's office.

Justice S.B. Sherr

Released: July 7, 2015