Court File and Parties

Court File No.: DR61543-13 Date: 2015-11-02

Ontario Court of Justice

Between:

GLADYS EZEIBE Acting in Person Applicant

- and -

MICHAEL IGBONEKWU Acting in Person Respondent

Counsel for the Designated Authority for Ontario, the Interjurisdictional Support Orders Unit: Michelle-Douglas Cummings

Heard: October 29, 2015

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The applicant (the mother) lives with her three-year-old twin daughters (the children) in the State of Maryland, in the United States. She has brought an application pursuant to the Interjurisdictional Support Orders Act (the Act). She seeks child support against the respondent (the father) who is the children's father. The mother also asks that the father contribute to the children's daycare costs. She asks that support be ordered retroactively to the children's date of birth.

[2] The father claims undue hardship and asks the court to order an amount of support that is less than the Child Support Guidelines (the guidelines) table amount. He asks that the court only order child support on an ongoing basis.

[3] The father asked for and was granted an oral hearing in this case pursuant to subsection 37 (9) of the Act. The mother also asked for and was granted the right to participate in this hearing. The parties both filed several affidavits and a financial statement. The sworn material constituted most of the direct evidence of the parties. The parties were each given the opportunity to supplement their direct evidence. The parties cross-examined each other and made submissions.

[4] The issues for this court to determine are:

a) Are the children entitled to child support from the father?

b) What income should be attributed to the father for child support purposes?

c) Should the table amount of child support be reduced based on the father's claim for undue hardship?

d) Should the father contribute towards the children's daycare expenses?

e) Is the mother entitled to retroactive support?

f) How much child support should the father pay up until the date of this decision?

g) How should the father repay the support arrears created by this order, if any?

Part Two – Background Facts

[5] The mother is 47 years old. She lives in Maryland with the two children.

[6] The mother was born, raised and educated in Nigeria. She has a Master's Degree from the University of Lagos. The mother worked for the United Nations in Liberia and Russia before moving to live in the United States in 2007.

[7] The mother deposed that she has struggled with finding employment in the United States. She made a decision to return to school full-time to obtain a nursing degree. For the past three years, she has worked part-time as a Direct Care Provider earning about $15,000 per annum while attending school. She expects to complete her nursing licensing exams within the next two years.

[8] The father is 49 years old. He was also born and educated in Nigeria. He has a university degree. He came to Canada in 2006 and is now a Canadian citizen.

[9] The father lives alone in Toronto.

[10] The father deposed that he has another daughter (one year old) who lives with her mother in Toronto. He claimed that he has an informal agreement with the child's mother to pay her $250 per month for support.

[11] The father is employed as a Personal Support Worker.

[12] The parties met in 2009. Shortly after, they participated in a traditional wedding ceremony in Nigeria. The parties never had a civil wedding ceremony. They came to Canada after the traditional marriage ceremony and lived together for three months. The mother then moved back to the United States to complete her studies. The father remained in Canada. The mother returned to Canada to live with the father after each school semester.

[13] The parties wanted a child, but the mother could not conceive. The parties jointly sought out, participated in and paid for an in-vitro-fertilization of the mother, which resulted in the birth of the children. The relationship between the parties broke down during the mother's pregnancy. The mother remained in the United States and gave birth there on October 16, 2012.

[14] The mother completed her claim for support in Maryland pursuant to the Act on April 24, 2013. The Notice of Hearing was issued in this court on August 15, 2013 and served on the father on September 6, 2013.

[15] The father contested paternity of the children. He questioned whether the sperm used in the in-vitro-fertilization process was his.

[16] On October 7, 2013, the court made an order for DNA testing.

[17] The DNA testing was delayed. The court sought the assistance of the Designated Authority for Ontario, the Interjurisdictional Support Orders Unit (the DA) to facilitate the testing and to provide the court with Maryland law with respect to the issue of the entitlement of the children to support. The DA was very helpful in facilitating this process.

[18] The DA attended at court on August 8, 2014 and presented the father and the court that day with the DNA results and Maryland law on the issue of support entitlement. The DNA testing confirmed that the father was the biological parent of the children. The case was adjourned in order for the father to review the law that was presented that day and to permit the mother to respond to additional evidence that had been filed by the father.

[19] The next court date was January 26, 2015. The parties consented to an order for reciprocal financial disclosure. A hearing date was set and timelines were set for the filing of additional material for use at the hearing.

[20] The parties did not comply with the filing timelines. They each wished to file voluminous affidavits on the hearing date of May 29, 2015. The hearing was adjourned and new timelines for filing were ordered. The return date was made peremptory on both parties.

[21] The father brought an application in Maryland in 2014 for joint custody and generous access to the children. The Maryland court granted custody of the children to the mother and supervised access in Maryland to the father in 2015. For the past two months, the father has been exercising this access once each month.

[22] The father has not paid any child support for the children.

Part Three – Entitlement to Child Support

[23] Paragraph 1 of section 13 of the Act sets out that in a child support claim made by a claimant residing outside of Ontario, the issue of entitlement shall first be determined by the law of the jurisdiction where the children ordinarily reside. In this case, that is Maryland. Paragraph 3 of section 13 of the Act provides that in determining the amount of support for a child, the Ontario court shall apply Ontario law.

[24] Section 14 of the Act permits the court to make or refuse to make a support order, make a periodic or lump sum order, or both, and to make a retroactive support order.

[25] Maryland law provides that a "laboratory report received into evidence establishing a statistical probability of the alleged father's paternity of at least 99% constitutes a rebuttable presumption of his paternity". See: Maryland Code, Family Law, Title 5-1029 (f) (4).

[26] The laboratory report submitted into evidence established a statistical probability of the father's paternity of 99.9993%.

[27] The father led no evidence to rebut the presumption of his paternity.

[28] Under Maryland law, a child born to parents who have not participated in a marriage ceremony with each other shall be considered to be the child of the father only if the father has acknowledged himself, in writing, to be the father. See: Maryland Code, Estates and Trusts, Title 1-208 (b) (1); Monroe v. Monroe, 329 Md. 758 (1993).

[29] A putative father's admissions, in pleadings, to being the child's father obviate the need for a judicial filiation decree. See: Thomas v. Solis, 263 Md. 536 (1971).

[30] The father filed pleadings in the Maryland court stating that he was the biological father of the children when he sought access to the children in 2014.

[31] The father also acknowledged during the trial that he is the biological father of the children.

[32] The children are entitled to support from the father in accordance with Maryland law.

Part Four – The Father's Income

[33] The father filed income tax summaries showing his annual income as follows:

• 2012 - $61,201
• 2013 - $48,334
• 2014 - $44,295

[34] The father deposed that he worked at two jobs prior to 2013. He said that he left the second job because the additional hours were causing him emotional and physical stress. The father filed a medical report dated February 6, 2014 from a psychologist that stated the father had significant emotional health challenges. His family doctor prepared reports that stated that the father has some physical health challenges (painful right shoulder and osteoarthritis in the neck). Since 2013, the father has worked at only one job, 40 hours each week. The court finds that this is reasonable given his age and health challenges.

[35] The father filed a pay stub from his employer reflecting his year-to-date income to the end of September 23, 2015. His gross income for 38 weeks is $34,889.93. This projects to an annual income of $47,744.14. This is the best evidence of the father's income for 2015 and on an ongoing basis for support purposes.

[36] The guidelines table amount for child support for two children at this income is $709 per month.

Part Five – Undue Hardship Claim

[37] The father asked the court to order child support lower than the guidelines table amount. He submitted that he should only pay $400 per month.

[38] The father essentially made a claim for undue hardship pursuant to section 10 of the guidelines. This section permits the court to order support in an amount that is different than the guidelines table amount in limited circumstances. Section 10 of the guidelines reads as follows:

Undue Hardship

10. (1) On the application of either spouse or an mother under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

Circumstances That May Cause Undue Hardship

(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include,

(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;

(b) the parent or spouse has unusually high expenses in relation to exercising access to a child;

(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is,

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;

(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;

(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

Standards of Living Must Be Considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse.

Standards of Living Test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

Reasonable Time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

Reasons

(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so.

[39] It is very difficult to make out a successful undue hardship claim under section 10 of the guidelines. There are three parts to the test:

1. The person making this claim must show that there are circumstances that could create undue hardship.

2. If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party's.

3. If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties.

See: Matthews v. Matthews, [2001] O.J. No. 876 (SCJ).

[40] The father must prove more than hardship. He must show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient. See: Hanmore v. Hanmore, 2000 ABCA 57.

[41] The father has the onus of providing adequate supporting documentation to prove his undue hardship claim. See: Van Gool v. Van Gool.

[42] The basis of the father's undue hardship claim is that he has a support obligation towards another child and has high expenses to travel to Maryland to exercise access. These are circumstances that can create undue hardship (see: clauses 10 (2) (b) and (e) of the guidelines).

[43] The father provided no evidence that he is paying child support for another child. There is no court order requiring him to do so. In the multiple affidavits filed by the father, including an affidavit filed on October 27, 2015, the father never mentioned that he had another child. This came out in his testimony. Given his dismal history of paying child support for the children, the court is not prepared to accept that the father is suffering any undue hardship due to his support obligations for his other child.

[44] The father does have additional expenses to exercise access in Maryland. He has to rent a car and pay gas. The father deposed that he stays with friends or at a hotel. However, the father failed to establish that this hardship is exceptional, disproportionate or excessive.

[45] Even if the father had been able to meet the first part of the undue hardship test, his claim would still have failed as he did not come close to meeting the second part of the test – his standard of living is higher than the mother's. The mother only earns $15,000 per annum and supports two children. The father has a much higher income and lives alone.

[46] The father alleged that the mother owned properties in Nigeria and Maryland. He provided no documentary evidence to support this. The mother provided evidence showing that she did not own these properties.

[47] During the trial, the father alleged that the mother was receiving $15,000 per month from the rental property in Nigeria. The allegation was absurd. There was no documentation to support this and the father made the allegation for the first time in the latter part of the trial.

[48] The father's claim for undue hardship is dismissed.

Part Six – Retroactive Support

[49] The mother seeks an order that the support order be retroactive to October 16, 2012 – the date of birth of the children.

[50] Ordinarily, once ability to pay child support has been established, child support is payable, at a minimum, from the date on which the application is served and is based on the actual income of the payor, in accordance with the guidelines. To do otherwise will only provide parties with an incentive to delay the final hearing. See Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 221 (Ont. C.A.).

[51] The application was served on the father on September 6, 2013. Retroactive support principles do not apply for support obligations accrued after that date.

[52] This raises the issue of what factors should apply when assessing the support obligation for the period from April 24, 2013 (when the application was prepared) until September 6, 2013 (when the application was served). This is often a factor in interjurisdictional cases due to delays in processing these applications. The parties are rarely responsible for these delays.

[53] I reviewed this problem in Murrell v. Wingfield, 2012 ONCJ 475 and MacDonald v. Langley, 2014 ONCJ 448. In both cases, I denied the support claim for this transition period. The deciding factor in both cases was the failure of the support recipient to broach the topic of support. In both cases, I found that the payor was shocked to be served with the application. That is not the case here.

[54] Retroactive support principles are helpful in determining entitlement to child support during these transitional periods. 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 was not considered earlier.

2. Conduct of the payor parent.

3. Circumstances of the child.

4. Hardship occasioned by the retroactive order.

[55] 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.

[56] 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 support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).

[57] 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).

[58] 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).

[59] The D.B.S. principles also apply to retroactive claims for section 7 special 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.).

[60] The mother testified that she broached the topic of child support with the father shortly after the children were born. She said that he refused to pay child support and has not paid child support since that time.

[61] The father deposed that he has offered the mother child support, but she has refused it. He said that he first offered her support of $1,000 in December of 2012. He said that he next offered her support in 2014 and again she refused this. The father produced copies of letters and bank drafts supporting this.[1] The mother accused him of manufacturing false evidence. She deposed that the father never offered her support.

[62] The court accepts the father's evidence that he offered the mother support in December of 2012, but she refused it. The mother became evasive and argumentative when confronted with the bank drafts from the father and texts from him (in 2014) proposing that he start to pay support.

[63] However, the court believed the mother when she said that she asked the father for support (after initially refusing to accept the December, 2012 bank draft) and he refused to pay it. Otherwise, it makes little sense that she would go through this difficult court process to seek support, while the father would contest his responsibility to pay it.

[64] The court also had difficulty with the father's credibility. He made many unsubstantiated allegations against the mother. He lost credibility with the court when he alleged near the end of the trial for the first time that the mother was receiving $15,000 per month from a Nigerian rental property. The father tried very hard to portray himself as a victim in this case. He claimed that he only wanted justice. He appeared oblivious to the fact that it was unjust that the mother and the children have received no support from him and he is only offering to pay them $400 per month on an ongoing basis.

[65] The court finds that the mother moved in a timely manner to seek support from the father.

[66] The court believes the father's evidence that he offered to pay the mother child support of $3,000 in November of 2014 and then $1,000 in December of 2014 and that the mother refused to accept these payments.[2] However, the court finds that the father did not offer to pay any support to the mother from December of 2012 until the latter part of 2014.

[67] The father has engaged in blameworthy conduct by failing to pay child support. He has preferred his own interests to those of the children. He took almost two years to offer the mother support again after she refused to take his bank draft in December of 2012. He contested his liability to pay support. To a large extent he is the author of his own misfortune in the accumulation of his support obligation.

[68] The circumstances of the children have been disadvantaged by the failure of the father to pay child support. The mother deposed that she can no longer afford daycare for the children – she removed them two months ago. She also can no longer afford their gymnastics class. The entire burden of supporting the children has fallen on the mother.

[69] A large retroactive award will cause some hardship for the father. The father has nominal assets and some credit card debt. He has to travel to Maryland to exercise access and now has another child. The father does not have to establish the two-part test for undue hardship set out in section 10 of the guidelines for his hardship to be considered in a retroactive support analysis.

[70] Balancing all of these factors, the court finds that a retroactive award is warranted.

Part Seven – Section 7 Expenses

[71] The mother is asking that the father contribute towards the children's daycare expenses, retroactive to January 1, 2013.

[72] The mother deposed that she paid a nanny between $1,000 - $1,200 per month in 2013, while she worked and attended school. She said this arrangement continued until March or April of 2014, when the children started to attend daycare. The mother deposed that she was able to obtain a subsidy from the State of Maryland and paid daycare expenses of approximately $600 per month. She deposed that she lost this subsidy this year and she could no longer afford to have the children attend daycare. She said that the children have stayed at home for the past two months.

[73] The mother said that presently she can only work six hours per week because she does not have child care. Her plan, if she could obtain adequate support, is to work 20 hours per week, complete her schooling and have the children attend daycare. This would cost, she said, about $1,300 per month.

[74] 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." See: Titova v. Titov, 2012 ONCA 864.

[75] The relevant provision of the guidelines reads:

Section 7 Special Expenses

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;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least of $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

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

[77] The childcare expenses incurred were necessary for the mother to work and to advance her education.

[78] The expenses incurred by the mother were reasonable. The father deposed that he had researched the cost of different daycares in Maryland. He said the costs came to about $1,300 per month – less than the costs paid by the mother.

[79] The court finds that the mother is entitled to some contribution to the special expenses she has incurred to date.

[80] The court is not prepared to make an order that the father contribute to ongoing section 7 special expenses at this time. These expenses have not been incurred for two months. The mother is not eligible for a daycare subsidy. It is speculative as to whether the mother will be able to afford this expense. The mother was candid in admitting that she needed sufficient support from the father to put the children back into daycare. The reality is that the amounts that the father can afford to pay are likely insufficient to allow the mother to afford unsubsidized daycare costs. Further, the court recognizes that making a support order is only one step in this process. The mother must still collect the support. Given the father's payment history, this may be a challenge.

[81] There is a limit to what the father can afford to pay to the mother. The court prefers to order a more aggressive repayment schedule of arrears rather than ordering a future contribution to section 7 expenses that are speculative and which might have to be repaid if not incurred.

Part Eight – Support Owed by the Father

[82] Having determined that the father should pay retroactive support and should contribute to the special expenses incurred to date, the next step is to determine the amount of the father's support obligations up to this date.

[83] In making this determination, the court has considered the factors reviewed in Part Six above.

[84] The court has also considered that subsection 7 (2) of the guidelines states that the guiding principle in determining the amount of a special expense is that the expense is shared by the parents or spouses in proportion to their respective incomes.

[85] The father asked the court to take into consideration that he had paid the mother's father about $10,000 in 2009 towards the cost of a property in Nigeria that has not been repaid. The father and the mother's father are presently in litigation over this property. This event took place 3 years before the children were born and is not relevant to this case.

[86] The father also submitted that the court should not order him to pay anything other than ongoing support because the mother has unreasonably put him to considerable expense in the Maryland case. The evidence supporting this claim is far from clear, and insufficient to factor into the support analysis. It certainly does not excuse the father's total non-payment of child support. The father was unsuccessful in obtaining an order for joint custody and liberal unsupervised access to the children, as he requested, in the Maryland case. The mother appears to have been the successful party in that case.

[87] The father will be required to pay the mother retroactive support in the sum of $30,000. This consists of the table amount of child support accrued since January 1, 2013 of $24,251[3] and a further contribution of $5,749 towards past daycare costs (which is far less than his proportionate share).

Part Nine – Repayment of Support

[88] The father does not have the resources to make a lump sum payment towards the support arrears.

[89] The court has considered that the father will have access costs each month in Maryland if he continues to exercise it and that he may have support obligations to his other child.

[90] The court has also considered that it is very unfair to the mother and the children that the father has not paid any child support.

[91] The court will order the father to pay the mother the sum of $350 per month towards the arrears until they are repaid. However, if the father is more than 30 days late in making any ongoing or arrears support payment, the entire amount of arrears shall immediately become due and payable.

Part Ten – Conclusion

[92] An order shall go on the following terms:

a) The father owes the mother child support of $30,000 as of this date, as calculated in these Reasons for Decision.

b) The father shall pay the mother the guideline table amount of child support for two children, based on an annual income of $47,700, in the sum of $709 per month starting on December 1, 2015.

c) The father shall repay the support arrears at the rate of $350 per month starting on January 1, 2016. However, if the father is more than 30 days in default of any ongoing support payments or arrears payments, the entire amount of the arrears outstanding shall immediately become due and payable.

d) The father shall, starting in 2016, annually provide the mother by June 30th with copies of his complete income tax returns, notices of assessment and his three most recent pay stubs. It is anticipated that the guidelines table amount of child support will then be adjusted in accordance with his income for the prior year.

e) A support deduction order shall issue.

f) 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 from lottery or prize winnings.

[93] If the mother wishes to seek costs, she shall serve and file written submissions by November 23, 2015. The father will then have until December 7, 2015 to serve and file a written response to these submissions. The written submissions are not to exceed 2 pages, not including any offer to settle. The submissions should be filed at the trial coordinator's office on the second floor of the courthouse.

[94] The court wishes to thank the DA and in particular, its counsel, Ms. Douglas-Cummings, for her very helpful assistance in facilitating this application.

Released: November 2, 2015

Justice S.B. Sherr

Footnotes

[1] The father produced copies of bank drafts for $3,000 dated November 21, 2014 and $1,000 dated December 20, 2014.

[2] It was clear from her presentation at trial that the mother had been very upset at the father at the time for starting court proceedings in Maryland seeking joint custody of the children after denying his obligation to pay child support for them in the Ontario case.

[3] The table amount for the father's income in 2013 was $719 per month, for a total of $8,628. The table amount for his income in 2014 was $652 per month, for a total of $7,824. The table amount for his income in 2015 is $709 per month, for a total of $7,799 for the eleven months to date. The total amount comes to $24,251.