Court File and Parties

Court File No.: D72178-14 Date: 2015-12-14

Ontario Court of Justice

Between:

P.M.B. Glenda Perry, for the Applicant APPLICANT

- and -

A.R.C.-A. Acting in Person RESPONDENT

Heard: November 6, 2015, with additional written submissions completed on December 8, 2015

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The parties are the parents of three children: M., who is 19 years old, R., who is 11 years old, and L., who is 8 years old.

[2] On July 10, 2015, the applicant (the mother) was granted final custody of R. and L. (the younger children). The respondent (the father) was ordered to pay final child support in the sum of $981 per month for the younger children, based on his agreed income of $65,998 per annum. The father was also ordered to provide annual financial disclosure to the mother. Several issues remained outstanding.

[3] The mother seeks a specified access schedule for the younger children that includes alternate weekends and extended holiday time with the father. She seeks several incidents of access arising out of her fear of the father and the father's inconsistency in exercising access. She asks for an order that the father not remove the younger children from the Provinces of Ontario and Quebec. She is seeking child support retroactive to July 1, 2011. The mother seeks a final order that the father maintain all the children on his extended health benefits. Lastly, she seeks a final restraining order against the father that limits his communication with her and prevents him from coming near her or her home.

[4] The father presently lives in Ottawa.[1] He opposed the mother's access proposal, but did not offer any alternatives. Despite the fact that custody was already finalized, he remained focused on seeking custody and criticizing the mother's parenting. He wants the mother to exchange the children on visits in Kingston, Ontario. He would like to be able to travel with the younger children outside of Canada. He opposes the mother's requests for retroactive child support and a restraining order.

[5] The direct evidence in the trial was provided by affidavits and financial statements. Both parties filed two affidavits. The mother's mother (the maternal grandmother) also filed a short affidavit. The parties were permitted to cross-examine the deponents of any affidavit. The father declined to cross-examine the mother or the maternal grandmother. The mother conducted a brief, but effective, cross-examination of the father.

[6] At the conclusion of the trial, the court asked the parties to make written submissions about its jurisdiction to make a retroactive support order with respect to M., as she was not entitled to child support when the mother started this application. Both parties made written submissions. The date for submissions closed on December 8, 2015.

[7] The main issues for this court to determine are:

a) What access order is in the younger children's best interests?

b) Should the court make an order preventing the father from removing the younger children from the Provinces of Ontario and Quebec?

c) Should a final restraining order be granted?

d) What has been the father's income since 2011 for the purpose of the child support calculation?

e) Does the court have jurisdiction to make a retroactive support order regarding M.?

f) Should retroactive child support be ordered?

g) If so, how much retroactive support should be ordered?

h) How should any support arrears be repaid?

Part Two – Background

[8] The parties are both 41 years old.

[9] The parties were married on December 18, 1995. They lived together in Ottawa.

[10] The parties disagree on their date of separation. The evidence indicates that they have lived separate and apart since at least November of 2010.

[11] The parties' children have lived with the mother since the date of separation.

[12] The parties did not obtain a court order or enter into a formal separation agreement after they separated. The father generally exercised access to the younger children on Friday evenings and on alternate weekends. M. often chose not to see the father.

[13] The father orally agreed with the mother to pay her $700 per month for child support after the separation. This was based on the father's 2011 income of $55,214. This was less than the Child Support Guidelines (the guidelines) table amount at that time, being $1,085 per month. The father, for the most part, paid the support agreed to until November of 2014.

[14] On July 1, 2014, the mother and the parties' children moved to Toronto from Ottawa.

[15] The father stopped paying child support in November of 2014.

[16] The mother issued this application on December 8, 2014.

[17] The mother also brought a motion without notice on December 8, 2014, after the father threatened to pick up the younger children and move them to Ottawa. Justice Debra Paulseth made temporary without prejudice orders including: custody of the younger children to the mother; access as agreed upon; non-removal of the children; return of the children's passports to the mother and a restraining order against the father.

[18] The matter returned to court on December 19, 2014. Justice James Nevins granted the father access to the younger children from December 27th to 30th, 2014, with the exchange to take place in Kingston, Ontario. He ordered that subsequent access was to take place on alternate weekends in Toronto. He required the father to advise the mother of his temporary residence and to ensure that he had appropriate car seats. He suspended child support. He deleted the requirement for the father to return the younger children's passports.

[19] On March 9, 2015, Justice Nevins made some modifications to access, requiring the father to provide the mother with a minimum of 48 hours written notice if he would be exercising access. He also ordered the father to provide detailed financial disclosure. He granted the father an extension until April 13, 2015 to file his Answer/Claim. This order was made on consent.

[20] The father did not attend at court on April 20, 2015. Temporary orders were made including: custody of the younger children to the mother; the father to pay child support of $1,172 per month for two children, based on an attributed income to him of $80,000 per annum (without prejudice to the start date and the amount of support) and an order that the father maintain extended health plan coverage for the younger children.

[21] The court granted the father another extension to file his Answer/Claim and endorsed that if he failed to do so, it was likely that the court would proceed on a default basis on the next court date. It also endorsed that the court would be willing to consider adjusting the amount of temporary child support on the return date if the father provided financial evidence that the amount ordered was too much.

[22] The father attended at court on July 10, 2015. He had still not filed an Answer/Claim. The mother sought to note him in default. The court granted another extension to the father to file an Answer with respect to some of the issues, on terms. The mother was granted final custody of the children. The court endorsed that the father's income of $65,996 per annum was not in dispute and that the father, despite opportunities, had provided no basis to deviate from the guidelines. He was ordered to pay the mother final ongoing child support in the amount of $981 per month, being the guidelines table amount for the younger children. He was ordered to provide annual financial disclosure.[2] The existing temporary orders for access, health plan coverage and the restraining order were continued status quo. A further financial disclosure order was made. The father's Answer was to be restricted to the temporary issues and the issue of retroactive child support. Costs were reserved.

[23] On September 4, 2015, the parties agreed to the process for a focused hearing of the remaining issues pursuant to subrule 1 (7.2) of the Family Law Rules.

Part Three – Access

3.1 Legal Considerations

[24] The court must decide what access order is in the child's best interests and consider the factors set out in subsection 24 (2) of the Children's Law Reform Act (the Act) in reaching this decision. This subsection reads as follows:

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[25] A child should have maximum contact with both parents if it is consistent with the child's best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

3.2 Positions of the Parties

[26] The mother asks that the current access schedule remain in place, except that the notice period be extended from 2 days to 7 days. She has offered a detailed holiday proposal that involves both parties spending generous time with the children. She does not want direct contact with the father (except on exchanges) due to safety concerns that will be reviewed below. She says that the father unilaterally changes the court-ordered access schedule, often appearing with little or no notice and demanding access. The mother said that M. had been conducting the access exchanges on her behalf but is no longer willing to do so because of the father's behaviour. The father has made several abuse allegations to the Catholic Children's Aid Society of Toronto (the society) and the police against the mother and M. during 2015.

[27] The mother sought several incidents of access to address her concerns about her safety, the father's inappropriate involvement of the younger children in adult matters and the father's inconsistency on access. These terms included: non-removal of the younger children from Ontario and Quebec; that the residence of the younger children not be changed; specified times for exchanges at a police station; not using the younger children to schedule access and not discussing inappropriate matters with the younger children, such as: asking them to write down accounts of abuse or photographing them to prove abuse.

[28] The father did not provide an access proposal to the court – he wants the younger children to live with him. He vilified the mother and M. in his affidavits, accusing them of abusing the younger children. He clearly believes the mother is a bad parent. He said that the amount of access he could exercise depended on how much child support he was ordered to pay. When asked if he would want to have the younger children for one week over the winter school holiday (as proposed by the mother), he said he didn't agree with it, because he didn't have enough money.

[29] The father stated that he wanted the mother to share in the transportation of the younger children on access visits. He wants to exchange them in Kingston. He also wants to take the younger children out of Canada for vacations.

3.3 Discussion

[30] The court has no concerns about the mother's parenting of the younger children. They are doing well in her care.

[31] Despite her concerns about the father, the mother is able to recognize the importance of the younger children having a positive relationship with him. The mother has facilitated access with the father and has proposed a generous access schedule.

[32] The court finds that the mother has legitimate safety concerns about the father. This will be detailed in the section discussing the restraining order below.

[33] The best interests of the younger children dictate the need for a structured access schedule. The father acts unilaterally and demands access on his own terms, often with little or no notice to the mother. The father's material reveals a profound lack of respect for the mother. His short affidavit sworn on October 30, 2015, consisted of three paragraphs, mainly insulting the mother. The last paragraph reads:[3]

You see here you said that I was with them you got 1 thing ritgh. Get your lies straight lady you should ask your daughter for advice on how to lie she has learn so much from you & obviously she is way better than you at lying.

[34] The father has been engaged in a campaign to discredit the mother since she started this case. He has made multiple complaints to the society against her. He has been disappointed with the society's response. He writes in his affidavit sworn on October 27, 2015:

Now for the March one those people from the CCAS were useless and disrespectful to my my kids and were very unprofessional. The CCAS from March were completely useless and so unprofessional.

She (Sandy) ignore reasons/things that I told her about how my kids were abuse in that home. The lady form CCAS in March (Sandy) was nothing but useless for this case and my kids.

[35] The society closed their file after their investigation. A letter filed at trial stated that the society felt no further action was required. M. was cautioned about being physical with the younger children.

[36] The father is photographing the younger children in the nude to try to support his abuse allegations. This is an invasion of the children's personal dignity and highly inappropriate parenting. The father attached these photographs to his affidavit. He admitted that he did not serve these exhibits on the mother, because he didn't want her, "to take it out on the children". He did not provide the society with these photographs.[4] He is having the younger children write accounts of their complaints against the mother. He is also actively recruiting them to live with him.

[37] The father reported his abuse allegations to the Toronto Police Services. The younger children were interviewed by the police on September 11, 2015. The police closed their file after this interview. The police occurrence report was filed. The police officer observed that the younger children were smiling and visibly happy. They both advised the officer that they are well taken care of by the mother. They also advised the officer that the mother was not physically abusing them.

[38] The father appears to lack any insight into the emotional turmoil and loyalty conflict his behaviour may be causing the younger children.

[39] The court finds the mother's proposals regarding the access schedule and incidents of access to be very reasonable in these circumstances. The stability and emotional safety of the younger children require a structured order where the mother will be safe and the younger children will not be exposed to conflict. The court will make some modifications to the mother's proposed terms to achieve these objectives.

[40] It is understandable that M. no longer wants to facilitate the access exchanges. The father has reported her to the society and aggressively attacked her character in his affidavits. The younger children need a safe exchange point. There is no other third party available to facilitate access exchanges. While the court prefers to avoid exchanges at a police station, due to the poor message it sends to children about their parents, in this case such an order is warranted to ensure a safe exchange.

[41] The father has not consistently kept to the access schedule. He told the court that he might not be able to afford to come for access if the support order is too high. There is a real concern that he will continue to insist on access whenever it is convenient for him, often with little notice to the mother. The time required for the father to confirm that he will be attending visits will be extended to four days before the visit. If he fails to confirm in writing that he will attend, the visit will be cancelled. This will permit the mother to have a reasonable amount of time to make alternate plans for the younger children. It will also allow her to adjust her work schedule to be at home with the younger children if the father will not be exercising his access.

[42] There is a real risk that the father will try to act unilaterally to impose his control on the younger children. The father reinforced the message to the mother that he was in control by attending at the younger children's school on the day of trial (not his access time) and sending to her what she certainly perceived as a threatening text message. It reads as follows:

I was not trying to pick them up I just wanted to let them know to bring their swimsuit and a few other stuff. One day you gonna have a taste of your own medicine.

[43] The father acknowledged in his affidavit that he tells the children that one day they will come back to Ottawa to live with him. The court believes that the father did threaten to remove the children to Ottawa in November of 2014.

[44] The father is from Nicaragua and he has extended family living there. The court is not prepared to permit the father to take the younger children outside of Canada until he can demonstrate a sustained period of responsible behaviour and show that he can positively support the younger children's relationship with the mother. A non-removal order, as requested by the mother is warranted.

[45] The access exchanges shall take place in Toronto. There are several reasons for this. The father is not consistent with exchange times – the mother and the children should not be in a different city wondering if the father will attend on time. Exchanges will likely be safer for the mother in a locality with which she is familiar. Further, the mother does not drive on highways. It would be very difficult and stressful for her to exchange the children in Kingston.

[46] The access order will also restrict the father from inappropriate engagement with the children. It is clear that some boundaries need to be established. The father acknowledges in paragraph 80 of his October 27, 2015 affidavit, that "yes I do undermined her parenting skills" and then proceeds to justify this behaviour. The father is angry and is demonstrating bad judgment in his discussions with the children.

[47] The father complained that the mother is not returning his texts about the children in a timely manner. The mother denies this. An order will go that the mother will respond to any respectful text from the father regarding the children within 48 hours.

Part Four – Request for a Restraining Order

4.1 Legal Considerations

[48] Justice Robert J. Spence, in McCall v. Res, 2013 ONCJ 254, reviewed the legal principles with respect to restraining orders. This court adopts his analysis, which is set out in paragraphs 27-31 as follows:

2. The statutory scheme

[27] The statutory authority for the making of a restraining order emanates from section 35 of the Children's Law Reform Act ("CLRA") and section 46 of the Family Law Act ("FLA"). Section 35 of the CLRA provides [my emphasis]:

Restraining order

35. (1) On application, the court may make an interim or final restraining order against any person if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Provisions of order

(2) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

Section 46 of the FLA provides [my emphasis]:

Restraining order

46. (1) On application, the court may make an interim or final restraining order against a person described in subsection (2) if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

Same

(2) A restraining order under subsection (1) may be made against,

(a) a spouse or former spouse of the applicant; or

(b) a person other than a spouse or former spouse of the applicant, if the person is cohabiting with the applicant or has cohabited with the applicant for any period of time.

Provisions of order

(3) A restraining order made under subsection (1) shall be in the form prescribed by the rules of court and may contain one or more of the following provisions, as the court considers appropriate:

1. Restraining the respondent, in whole or in part, from directly or indirectly contacting or communicating with the applicant or any child in the applicant's lawful custody.

2. Restraining the respondent from coming within a specified distance of one or more locations.

3. Specifying one or more exceptions to the provisions described in paragraphs 1 and 2.

4. Any other provision that the court considers appropriate.

[28] Although the legislation permits the court to make a restraining order prohibiting or restricting the father's contact with the mother or the child, it does not permit the court to make a restraining order which extends to "family", "friends" and "acquaintances" of the mother, which the mother has requested in this case. Accordingly, that particular request for relief by mother cannot be granted.

3. Case law

[29] Before the court can grant a restraining order, it must be satisfied that there are "reasonable grounds [for the mother] to fear for her own safety or for the safety of [her child]". In Fuda v. Fuda, 2011 ONSC 154, Justice McDermot had this to say, at paragraph 31 [my emphasis]:

It is not necessary for a respondent to have actually committed an act, gesture or words of harassment, to justify a restraining order. It is enough if an applicant has a legitimate fear of such acts being committed. An applicant does not have to have an overwhelming fear that could be understood by almost everyone; the standard for granting an order is not that elevated. A restraining order cannot be issued to forestall every perceived fear of insult or possible harm, without compelling facts. There can be fears of a personal or subjective nature, but they must be related to a respondent's actions or words. A court must be able to connect or associate a respondent's actions or words with an applicant's fears.

[30] In Azimi v. Mirzaei, 2010 CarswellOnt 4464 (Ont. S.C.), Justice Ruth Mesbur made the following comments, at paragraphs 7 and 9 [my emphasis]:

More importantly, Horkins J made specific findings of fact that the applicant had physically and verbally abused the respondent, with psychological abuse being more frequent. It is telling that today, when the respondent raises the issues of her ongoing psychological fear of the applicant, the applicant simply suggests she should get counselling. [In this case] I accept that the respondent has reasonable grounds to fear for her own safety and the safety of the child who is in her custody. This fear extends to both their physical safety and psychological safety.

[31] What I take from these cases is:

• The fear must be reasonable

• The fear may be entirely subjective so long as it is legitimate

• The fear may be equally for psychological safety, as well as for physical safety

4.2 Findings

[49] The evidence supports, on a balance of probabilities, findings that:

a) The mother's fear of the father is reasonable.

b) That even if the extent of the mother's fear of the father is subjective, it is legitimate.

c) That the mother fears for her psychological safety as well as her physical safety.

d) The terms of the restraining order sought by the mother are reasonable and proportionate.

[50] The mother sought a limited restraining order against the father. She does not seek a restraining order with respect to the parties' children.

[51] The mother, in her affidavit, set out in considerable detail a history of physical and emotional abuse against her by the father – all denied by him. The physical abuse includes incidents where the father punched, slapped, kicked, choked and threatened her. The mother also provided considerable detail about the demeaning emotional abuse inflicted on her by the father.

[52] The temporary restraining orders were based on the affidavit material filed. The father did not cross-examine the mother. The evidentiary basis that supported making the temporary orders continues.

[53] There is no need for the court to determine whether each incident of alleged abuse occurred. The court is satisfied that the mother has both objective and subjective grounds to fear for her emotional and physical safety. Even as recently as the day of trial, the father sent the text which served to increase the mother's fear of him.

[54] The mother's version of events was buttressed by the tone and content of the father's affidavits. The tone was hostile and demeaning to the mother, the maternal grandmother and M. The father also expressed hostility to the society and even his own lawyer, who represented him at one court appearance. He appears to become easily frustrated when he doesn't get his way.

[55] The father's reports to the society and to the police are indicative of the father's desire to control and intimidate the mother. It is unlikely that the timing of these calls during this court case was a coincidence.

[56] A separate endorsement for the restraining order will be prepared.

Part Five – The Father's Income

[57] The father is employed full-time as a truck driver. He also works part-time as a cook. The father's line 150 income since 2011, as reflected in his notices of assessment has been as follows:

2011 - $55,214 2012 - $63,598 2013 - $57,935 2014 - $65,996

[58] The father provided a pay stub from his principal employer for 2015, but no pay stubs from his secondary employer. He filed a letter from that employer, dated March 26, 2015, stating that he worked about 7.5 hours per week at $18.08 per hour. The father claimed in his financial statement that he is only earning $43,495 per annum. This was not credible. The father's year-to-date income in his filed pay stub reflected 2015 income that projected to close to $55,000 from the one job alone.

[59] The mother asked the court to fix the father's 2014 and ongoing income at $68,800 per annum. This represents the father's gross income – he wrote off about $2,800 of business expenses in 2014. Aside from his Statement of Business Activities attached to his income tax return, little detail was provided about these expenses.

[60] The court will use the figure of $65,996 (the 2014 line 150 amount) as the father's income from January 1, 2014. It is the best evidence of his income. It is also the amount that the parties agreed to as the father's income for the purpose of ongoing support on July 10, 2015. The difference created by the business expense deductions is not significant enough to warrant going behind this agreement.

[61] The court made a comprehensive temporary order for extended health plan coverage in its order of April 20, 2015. There was no issue about this continuing. It is for the necessaries of life for the younger children. This order will be made final with respect to the younger children.

Part Six - Child Support Paid

[62] The parties orally agreed in 2010 that the father would pay the mother child support of $700 per month. The father paid this support (for the most part) until November of 2014. In September of 2014, the father increased the support payment to $1,000 and in October of 2014, he paid the mother support of $900. He did not pay support for the balance of 2014. The father paid a total of $7,200 for child support in 2014.

[63] The father did not make any further support payments until June 10, 2015. As of September 3, 2015, he had paid the mother total support in 2015 of $3,303.60.

Part Seven - Retroactive Support

7.1 Legal Principles

[64] 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. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.

2. The conduct of the payor parent.

3. The circumstances of the child.

4. The hardship that the retroactive award may entail.

[65] 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.

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

[67] 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).

[68] 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).

[69] The court should not hesitate to find a reasonable excuse for delay where:

a) The recipient spouse harbored justifiable fears that the payor parent would react vindictively to the application to the detriment of the family or;

b) The recipient lacked the financial or emotional means to bring an application or;

c) The recipient was given inadequate legal advice (D.B.S., par.101)

[70] A court order is presumptively valid when assessing conduct. However the larger the difference between the order and what should be paid, the less reasonable it becomes to rely upon it. (D.B.S., par. 65).

[71] The same analysis applies to agreements, but they have less weight than orders. (D.B.S., par.78).

[72] It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one's children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed. Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. See: Titova v. Titov, 2012 ONCA 864, citing D.B.S, par. 95.

[73] Courts should attempt to craft the retroactive award in a way that minimizes hardship. Hardship to the payor parent may be mitigated by a judgment which allows for payment of an award in instalments: See: D.B.S. at para. 116.

[74] The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, there is no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing (D.B.S., par. 125).

7.2 Entitlement of M. to Support

7.2.1 What Date Did M. Cease to Be Eligible for Support?

[75] M. stopped attending school at the end of June of 2014. She has not returned to school, except to take some residual high school credits. The evidence did not satisfy the court that this constituted the requisite full-time attendance in a program of education which would continue M's eligibility for child support.[5] The mother deposed that M. plans to go back to school in January of 2016, but provided no evidence that she has taken any steps to do this.[6]

[76] The father's child support obligation for M. ended as of June 30, 2014. If she goes back to school on a full-time basis, the mother is free to move for a support order for her.

[77] The next issue to determine is whether the court has jurisdiction to make a retroactive order for M., as she was not entitled to support when the mother commenced this application on December 8, 2014.

7.2.2 The D.B.S. Rule

[78] In D.B.S., supra, the court found that a claim for retroactive support could not be made unless the child was eligible for support at the time the application was made (the D.B.S. rule). The court writes the following in paragraphs 88 and 89:

88 The situation under the Divorce Act is more complex. Under s. 15.1(1), an order may be made that requires a parent to pay "for the support of any or all children of the marriage". The term "child of the marriage" is defined in s. 2(1) as

a child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;

The question then arises when the "material time" is for retroactive child support awards. If the "material time" is the time of the application, a retroactive child support award will only be available so long as the child in question is a "child of the marriage" when the application is made. On the other hand, if the "material time" is the time to which the support order would correspond, a court would be able to make a retroactive award so long as the child in question was a "child of the marriage" when increased support should have been due.

89 In their analysis of the Guidelines, J. D. Payne and M. A. Payne conclude that the "material time" is the time of the application: Child Support Guidelines in Canada (2004), at p. 44. I would agree. While the determination of whether persons stand "in the place of . . . parent[s]" is to be examined with regard to a past time, i.e., the time when the family functioned as a unit, this is because a textual and purposive analysis of the Divorce Act leads to this conclusion; but the same cannot be said about the "material time" for child support applications: see Chartier v. Chartier, [1999] 1 S.C.R. 242, at paras. 33-37. An adult, i.e., one who is over the age of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made. This is true, whether or not this adult should have received greater amounts of child support earlier in his/her life. Child support is for children of the marriage, not adults who used to have that status.

[79] The D.B.S. rule has been applied in cases under the Family Law Act. See: Browning v. Browning, 2008 ONCJ 388 and my decision in Clancy v. Hansman, 2013 ONCJ 622.[7]

7.2.3 Exceptions to the D.B.S. Rule

[80] The mother argued that the court should take a flexible approach to this issue. She submits that the court should differentiate D.B.S. on the basis that it was decided under the Divorce Act and subsection 2 (1) of that Act states that a "child of the marriage" is a child who "at the material time" falls within that definition. The limiting language of "material change" is not contained in the Family Law Act where section 29 defines dependant as a person to whom another has an obligation to provide support under Part III.

[81] The D.B.S. rule has been distinguished in cases where motions to change support retroactively have been brought and the subject child is no longer eligible for ongoing child support. See: Simone v. Herres, 2011 ONSC 1788; George v. Gayed, 2014 ONSC 5360; Lemay v. Longpré, 2014 ONCS 5107; Buckingham v. Buckingham, 2013 ABQB 155. These cases were all decided under section 17 of the Divorce Act.

[82] In Buckingham, the court concluded that the court in D.B.S. did not intend to create a strict jurisdictional rule for variation orders under s. 17 of the Divorce Act (paragraph 32). The D.B.S rule did not accord with an ordinary interpretation of the statute and, if applied, would create a framework that would treat parents inequitably. The court wrote at paragraph 48:

"… the application of a jurisdictional rule to variation orders will lead to inequitable treatment of parents, or to a support order that conflicts with the principles of child support outlined within the D.B.S. decision, in particular, the principle of fairness and the theory that support is based on income."

[83] The court also wrote at paragraph 57:

DBS was clear that a child support order under s. 15.1(1) can only be granted where the child is a "child of the marriage" at the time of the application. This accords with the wording of the statute. The same reasoning does not apply under s. 17(1) (a), where the statute is silent regarding the status of the child as a "child of the marriage." Based on the case history, Bastarache J's statutory interpretation of s. 15.1(1) and s. 2(1) exclusively and the inequitable treatment that would otherwise result from the courts' subsequent interpretation of this decision, I conclude that the Supreme Court of Canada did not intend to create such a strict limitation on applications for retroactive variation of an existing child support order. I therefore find that the court has the jurisdiction to consider the father's application for a variation order under s. 17(1) (a) of the Divorce Act.

[84] Buckingham was followed in Lemay, where the court permitted a motion to change for retroactive support to proceed when the subject child was no longer eligible for child support at the time the motion was started.

[85] The D.B.S. rule has also been distinguished in motions to change brought under the Family Law Act. In Mondino v. Mondino, 2013 ONSC 7051, the support recipient argued that the support payor was barred from bringing a motion to vary because section 29 of the Family Law Act refers to a "person who has an obligation to provide support under this Part" and this section speaks to a present obligation and not a past duty. The court did not accept this argument, writing in paragraph 58:

The result would otherwise be overly restrictive. Often a parent has to bring a motion to change in respect of a child who is no longer a dependent because they are not aware of the child's present circumstances. They bring the application when it comes to their attention that circumstances have changed or because they are out of touch with the child or the custodial parent, and don't know whether a child over the age of 18 has ceased his or her full time education. I do not believe that the legislature would have intended to restrict a parent's right to do so under such circumstances.

[86] In Meyer v. Content, 2014 ONSC 6001, Justice Deborah L. Chappel also addressed the jurisdictional issue in a motion to change brought under the Family Law Act. She concluded that the time for determining dependency is the time when the order was made. Justice Chappel wrote the following at paragraphs 53 and 54:

[53] … To conclude otherwise would lead to illogical and unfair outcomes. For example:

1. It would create a situation where a Respondent named in the order under consideration could bring a motion to change despite the child no longer having dependant status when the motion is commenced, whereas the same individual would be unable to do so if they happened to be the Applicant in the previous proceeding in which the order was made.

2. It would preclude a payor who has not been advised of changes in a child's circumstances that result in the child no longer being a dependant from seeking relief to terminate child support.

3. It would result in situations where a payor parent named as a respondent in the order could seek to retroactively reduce child support after the child is no longer a dependant, whereas the recipient parent in the same case who was named as an applicant would not be able to advance a counterclaim for a retroactive increase in child support.

[54] The interpretation which I am adopting makes sense not only from an interpretive perspective but also from a philosophical standpoint. In D.B.S., the Supreme Court of Canada emphasized the importance of eliminating incentives for payor parents to avoid their child support obligations, and ensuring that children receive the support which they are entitled to in a timely manner. Conversely, it is also important to avoid creating incentives for child support recipients to avoid sharing information with payors and continue collecting child support after entitlement has ended. The approach which I am taking furthers both of these objectives. While this approach may result in more child support variation litigation and less certainty for litigants, it allows the courts greater flexibility to achieve justice for children in need of financial support and parents involved in child support disputes. Any concerns regarding increased litigation and uncertainty can be mitigated by the courts establishing well defined principles and guidelines for resolving child support variation proceedings.

[87] These cases were all followed in Catena v. Catena, 2015 ONSC 3186, where a motion to change had been brought under the Family Law Act. The court found that it had jurisdiction to proceed with a claim for retroactive support when the subject child was no longer eligible for support when the motion was started. The court wrote at paragraphs 14 and 15:

[14] D.B.S. is distinguishable from the current case. While it dealt with retroactive claims of child support for adult children, it did so within the context of originating applications under the Divorce Act. A closer look at the reasoning of Bastarache J. discloses that his conclusion as to the timing of the application was drawn from his reading of the Divorce Act and s. 2(1) in particular. A "child of marriage" is a child who "at the material time" falls within the terms of the definition. Reading that into an application for child support made pursuant to s. 15.1 of the Divorce Act, Bastarache J. concluded that the material time was the time of the application.

[15] While this interpretation has settled the law in respect of originating applications under the Divorce Act, there has been a reluctance to apply it to variation applications brought pursuant to s. 17 of the Divorce Act.....

[88] In Catena, the court also found a distinguishing factor from D.B.S. to be that the case was being decided under the Family Law Act and not the Divorce Act (paragraph 18). The court writes about this difference in paragraph 22 as follows:

For the purposes of this case, s. 37(a) and (b) permit a dependent or respondent named in the order, or the parent of a dependent, to bring an application for the variation of an order. Section 29 defines a dependent who is obligated to be supported and s. 31 determines the child support obligation. Neither s. 29 nor s. 31 contain the temporal qualification "at the material time" found in s. 2(1) of the Divorce Act, upon which Bastarache J. relied on when imposing the limitation he did.

[89] Exceptions have also been made to the D.B.S. rule where a party has engaged in blameworthy conduct. In Simone v. Herres, supra and more recently in George v. Gayed, supra, the courts permitted an exception to the D.B.S. rule where the support recipients had been unable to pursue a variation within time because of the misconduct of the support payors. In Simone, the support payor's deliberate deception in thwarting the support recipient's efforts to contact him weighed heavily in the court's consideration. These cases were followed in Catena.

[90] Another exception to the D.B.S. rule is contained within D.B.S. itself. It also relates to the blameworthy conduct of a support payor who failed to disclose income increases to the support recipient. In the Henry v. Henry appeal (one of the four D.B.S. cases), the child was no longer a child of the marriage when the motion for retroactive support was made. However, the court found jurisdiction to make a retroactive order because the mother had made a request (a Notice to Disclose) upon the father to disclose his income while the child was eligible for support. The court wrote at paragraph 150:

I would add that the eldest child affected by Rowbotham J.'s order was no longer a child of the marriage when the Notice of Motion for retroactive support was filed. In the circumstances of this appeal, however, this fact has no effect on the jurisdiction of the court to make a retroactive child support order under the Divorce Act. Because Mr. Henry did not disclose his income increases to Ms. Henry earlier, she was compelled to serve him with a Notice to Disclose/Notice of Motion in order to ascertain his income for the years relevant to this appeal. This formal legal procedure, contemplated in the Guidelines and a necessary antecedent to the present appeal, sufficed to trigger the jurisdiction of the court under the Divorce Act. Because it was completed prior to the time the eldest child ceased being a child of the marriage, the court was able to make a retroactive order for this daughter.

[91] In Simone, the court writes at paragraph 22 that the D.B.S. rule will ordinarily apply, but there will be situations that will not be ordinary that will enable the court to exercise jurisdiction to make a retroactive support order for a child who was not eligible for support when the claim was commenced. To date, the case law reviewed above has created exceptions to the D.B.S. rule in the following circumstances:

a) In variation proceedings where there is an existing order and an established support obligation under the Divorce Act.

b) In motion to change proceedings where there is an existing order and an established support obligation under the Family Law Act.

c) When there has been blameworthy conduct on behalf of a support payor that has contributed to the support recipient's failure to bring the retroactive support claim within the requisite time.

7.2.4 Analysis

[92] The facts of this case fall somewhere in between D.B.S. and the distinguishing motion to change cases set out above. As in D.B.S., this is an originating application by the mother. However, similar to the motion to change cases (and unlike in D.B.S.), the mother is asking the court to retroactively adjust the terms of an existing support obligation – in this case an obligation created by a well-established oral agreement.

[93] Another significant distinguishing factor in this case from D.B.S. is that the mother is making a retroactive support claim for three children, two of whom were eligible for ongoing child support when the application for retroactive support was made. Blameworthy conduct is a critical factor in any retroactive support analysis. It is very difficult to properly assess this factor if a child who was eligible for support during the relevant period is removed from the analysis. In determining the conduct of the father, the court needs to conduct a complete examination of his support obligations at the relevant times. Was he paying the appropriate amount of child support when the third child was eligible? At what point should he have been aware that the amount of support he was paying was inadequate?

[94] The court finds that this is not an ordinary case where the D.B.S. rule should apply for the following reasons:

a) The parties had an existing and well-established oral agreement (4 years) for the support of all three children. In essence, the mother has asked the court to change the terms of that agreement both prospectively and retroactively.

b) Two of the children were eligible for support when the claim for retroactive support was made. Inclusion of the third child is required to conduct a proper analysis of the D.B.S. factors to determine whether a retroactive support order should be made and if so, when it should start, the amount that should be ordered and how it should be repaid.

c) The father was fully aware of his support obligation, paying child support for 4 years pursuant to the oral agreement.

d) The father was also well aware that he was not paying the appropriate amount of child support. This is reflected in the fact that he increased his support payments in September and October of 2014.

e) The father chose not to disclose his increases in income to the mother. This was blameworthy conduct. The father was or should have been aware that his support obligation should have increased. If he had disclosed his income, the mother could have brought the support application while M. was still eligible. He lulled the mother into inaction by paying the mother the lower level of support, while failing to disclose his increases in income. The court finds that the father's blameworthy conduct contributed to the mother's failure to bring her retroactive support claim within the requisite time.

f) The father's behaviour becomes more egregious when it is considered that he had already been advantaged by the mother's agreement to accept less that the guidelines table amount in their oral agreement. It would be inconsistent with the overall philosophy of D.B.S. to reward the father for such behaviour.

g) The claim for retroactive support was made only four months after M. became ineligible for ongoing child support.[8]

h) The mother moved almost immediately for a court order for support (less than one month) after the father stopped paying child support to her.

i) M. will likely benefit from the payment of retroactive support. It might assist her in pursuing her education.

j) This court agrees with the comments of Justice Chappel in paragraph 54 of Meyer v. Content set out above. A flexible approach to retroactive support claims is consistent with the overall philosophy of D.B.S. Incentives to support payors to avoid providing financial disclosure and proper child support should be eliminated. Children who are entitled to appropriate support should not be disadvantaged by such behaviour.

[95] The impact, if any, of the child's eligibility for support at the time of the application in a retroactive support claim can be addressed by the court within two of the four main D.B.S. factors, namely: the reason for the delay in bringing the application and the circumstances of the child.

7.3 Analysis of D.B.S. Factors

[96] The mother provided a partial excuse for her delay in bringing a support application – she said that she was afraid of the father's reaction if she sought more money from him. She said that she was afraid for her safety and how the father's anger about a request for support would impact the three children.

[97] The mother's fears have been borne out. The father is very upset that the mother is seeking more money from him. He has engaged in a full-scale attack on her character and is trying to recruit the younger children to live with him. He is calling the society and the police to report that the mother is abusing the younger children. He is using the younger children to hurt the mother and in the process is risking emotionally harming the younger children.

[98] That said, it appears that the mother would not have sought more support from the father except for two triggering events. The first was the father stopping the child support payments in November of 2014. The second was the father threatening to remove the younger children to Ottawa around the same time. The mother gave no indication to the father that she was dissatisfied with the support agreement. There was no evidence that she ever asked the father for more money or for any financial disclosure.

[99] The father complied with the terms of the oral support agreement for almost four years. No indication was given to him that more support was required. It is likely that he organized his financial affairs accordingly.

[100] The court has also considered that M. ceased being eligible for ongoing child support as of June 30, 2014.

[101] However, the father should have notified the mother about his increases in income in 2012 and 2014 and increased his support payments. In 2012, the guidelines table amount would have been up to $1,237 per month for the three children. The father was only paying $700 per month. At this point, the protection of the father's interest in certainty had become unreasonable. It was particularly unreasonable since the mother had originally agreed to take less than the guidelines table amount. The father took advantage of the mother's generosity when he failed to reveal his increase in income. This was blameworthy conduct which advantaged the father.

[102] No evidence was provided about the circumstances of the three children being disadvantaged due to the father's failure to pay the proper amount of support. The court has considered that M. is considering returning to school and would benefit from a retroactive support order.

[103] There will be some hardship to the father in making a retroactive support order. This hardship can be ameliorated through a reasonable repayment order.

[104] The court has also considered that the mother agreed to accept less than the guidelines table amount when she entered into the oral agreement with the father in 2012.

[105] Taking all of these factors into consideration, it is appropriate for the court to make an order for retroactive support. The court will make this support order retroactive from July 1, 2013 until June 30, 2014 for the three children and from July 1, 2014 until December 31, 2014 for the two younger children. The father will be given credit for the support he paid after July 1, 2013. As will be seen below, a large portion of the father's arrears have accumulated during the period that he failed to pay any support.

Part Eight - Calculation of Child Support Arrears

[106] The guidelines table amount for three children at the father's 2013 income of $57,935 per annum is $1,130 per month. This totals $6,780 for six months. The father paid $4,700 after July 1, 2013, leaving a balance owing to the mother of $2,080.

[107] The guidelines table amount for three children at the father's 2014 income of $65,996 per annum is $1,283 per month. This totals $7,698 for the first six months of 2014 (when three children were eligible for support). The father paid a total of $4,200 during these six months, leaving a balance owing of $3,498.

[108] The guidelines table amount for two children at the father's 2014 income is $981 per month. This totals $5,886 for the last six months of 2014. The father paid a total of $3,000 in these six months, leaving a balance owing of $2,886.

[109] The total of retroactive support owing (to the end of 2014) is $8,464.

[110] The amount of support accrued after January 1, 2015 is not retroactive support. In MacKinnon v. MacKinnon, 75 O.R. (3d) 175 (C.A.) at paragraph 19, the Ontario Court of Appeal clarified that retroactive support relates to claims for support for the period predating the commencement date of the pleading in which support is claimed. A claim for support within the pleading is properly characterized as prospective support.

[111] The guidelines table amount for two children continues to be $981 per month in 2015. This comes to a total of $8,829 as of the end of September of 2015 (9 months). The father has paid total support of $3,303.60 in 2015 (as of September 3, 2015), leaving a balance owing of $5,525.40.[9]

[112] The father will be credited with any other payments received by the Family Responsibility Office in September of 2015 not taken into account in this decision. Subject to this adjustment, the father owes the mother child support in the sum of $13,989.40 as of September 30, 2015.[10]

Part Nine - Repayment of Arrears

[113] The court has considered that the father has limited assets. It also considered that he has additional costs when he comes from Ottawa to exercise access.

[114] The father will be provided with a reasonable repayment schedule for the support arrears. However, if he is more than 30 days late in making any ongoing or arrears support payment, the entire amount of the arrears shall immediately become due and payable.

[115] The father may repay the arrears at the rate of $219 per month until repaid.[11] This will permit him to repay the arrears over a period of slightly more than five years. These payments will begin as of January 1, 2016.

Part Ten – Conclusion

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

a) The father shall have access to the younger children on alternate weekends from Saturdays at 9 a.m. until Sunday at 6 p.m., or as otherwise agreed between the parties, such access to be exercised in Toronto.

b) If the father's access weekend falls on a weekend that has a PA day or a statutory holiday, his access will be extended. If the Friday is the PA day or statutory holiday, the father may pick up the younger children at 10 a.m. on Friday. If the Monday is the PA day or statutory holiday, the father may return the younger children at 6 p.m. that day.

c) The father will have winter school holiday access to the younger children from Friday after school ends at 4 p.m. for 9 days, ending on the Sunday at 8 p.m. (in 2015, this will be from December 18th until December 27th). The younger children shall spend the balance of the winter school holiday with the mother (this will include New Year's Eve and Day).

d) The younger children shall alternate spending March Break with each parent. They shall spend March Break with the father in even-numbered years, starting in 2016 and odd-numbered years with the mother, starting in 2017.

e) The father shall be entitled to spend additional time with the younger children, if requested, on their birthdays.

f) The younger children shall spend the Father's Day weekend with the father and the Mother's Day weekend with the mother. This takes priority to the regular access schedule. The other parent shall have the younger children with them the following weekend, when the regular access schedule will resume.

g) The father may have the younger children with him for two exclusive weeks in both July and August each year. The mother shall also have two exclusive weeks with the younger children in July and August each year. The father shall notify the mother what two weeks he wants in July and the mother is to notify the father what two weeks she wants in August by May 15th each year. The father shall notify the mother what two weeks he wants in August (not weeks that were selected by the mother) and the mother is to notify what two weeks she wants in July (not weeks that were selected by the father) by May 30th each year.

h) The holiday schedule shall take priority to the regular access schedule.

i) The father shall not remove the younger children from the provinces of Ontario and Quebec, without the notarized written consent of the mother or except in accordance with a court order.

j) The father shall not change the younger children's residence from Toronto.

k) The father is to provide the mother with four days written notice that he will exercise access for each scheduled visit, failing which the visit will not take place, unless agreed to otherwise by the mother. For the 2015 winter school holiday only, this notice shall be reduced to two days, due to time constraints.

l) The father shall only exercise access at the times set out in this order, unless otherwise agreed to by the mother. In particular, he shall not attend at the schools of the younger children without the mother's permission.

m) All access exchanges shall take place at the 42 Division police station located at 242 Milner Road, Toronto, Ontario, or such other place as agreed upon by the mother.

n) The father shall treat the mother in a respectful manner at access exchanges.

o) The father shall maintain an appropriate car seat for L. and use the car seat when he transports her in his car.

p) The father shall keep the mother updated in writing in regards to his address and contact phone and email addresses and the address and contact phone number where the younger children will be staying with him during access visits at least 48 hours before visits.

q) The father shall communicate all scheduling or access related issues directly with the mother, using email or text messages.

r) The mother shall respond to any respectful text from the father about the children or access arrangements within 48 hours.

s) The police, wherever the younger children are located, shall enforce this order, if requested by the mother, and if necessary, locate, apprehend and deliver the children to the mother pursuant to section 36 of the Children's Law Reform Act.

t) The father shall not:

i) Ask the younger children to write down accounts of abuse allegations.

ii) Photograph the younger children for the purposes of trying to show that the mother is abusing or neglecting the younger children.

iii) Photograph the younger children for any purpose in the nude.

iv) Discuss relocation outside Toronto with the younger children.

v) Discuss with the younger children the discipline used in the mother's residence or whether anyone in the household is abusing them.

vi) Discuss with the younger children whether the mother is in another relationship.

vii) Arrange access through the younger children.

viii) Communicate with the mother through the younger children.

u) The father's child support arrears as of September 30, 2015 are fixed in the sum of $13,989.40 (subject to any credit for support paid in September of 2015 after September 3rd as reflected in the records of the Director of the Family Responsibility Office), as calculated in these Reasons for Decision.

v) The father may repay the outstanding arrears at the rate of $219 per month, starting on January 1, 2016, until they are repaid. However, if the father is more than 30 days late in making any ongoing or arrears payment, the entire amount of arrears shall immediately become due and payable.

w) Paragraphs 2 and 8 of the July 10, 2015 court order regarding ongoing child support and annual financial disclosure are confirmed as being final and shall continue. Support shall continue to accrue from October 1, 2015 and the father should be credited with any payments made since October 1, 2015, as reflected in the records of the Family Responsibility Office.

x) Nothing in this order precludes the Director of the Family Responsibility Office from enforcing any arrears from any government source, such as HST or income tax refunds, or from any lottery or prize winnings.

y) The Director of the Family Responsibility Office shall amend their records to be in accordance with this order.

z) A support deduction order shall issue.

aa) The temporary order for extended health plan coverage contained in paragraph 4 of the April 20, 2015 court order is now final, with respect to the younger children. The father shall use his best efforts to obtain and provide benefit cards to the mother so she can make claims directly.

bb) A separate restraining order endorsement shall be issued.

[117] If the mother wishes to seek costs, she shall serve and file written submissions by January 7, 2016. The father shall then have until January 21, 2016, to serve and file any written response. The submissions shall not exceed three pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinators office on the second floor of the courthouse.

[118] The court is hoping that the father will de-escalate his behaviour now that this case is over. This behaviour risks emotionally harming his children. If he fails to change his behaviour, the mother should return to court to place further restrictions on his contact with the younger children.

Released: December 14, 2015

Justice S.B. Sherr

Footnotes

[1] The mother provided some evidence that the father may be residing with his sister in Gatineau, Quebec. The court will accept the father's evidence that he is living in Ottawa.

[2] The court notes that the issued order for July 10, 2015, states that ongoing support and annual financial disclosure are temporary orders. This is wrong. The court endorsement indicates that these were final orders.

[3] The court has reproduced the father's statements in this decision verbatim. The spelling difficulties are understandable given that English is not the father's first language.

[4] These photographs do not prove that the mother is abusing the children.

[5] Subsection 31 (1) of the Family Law Act reads:

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

[6] In closing submissions, the mother asked to have child support continue for "a month or two" after June 30th, 2014 - when M. had completed school. The mother argued in her subsequent written submissions that the father's failure to contest the mother's claim that M. was eligible for support until November of 2014 meant that the court should find M. eligible until this time. The court disagrees. If the child was not eligible for child support from July 1, 2014 to November of 2014, the court should not impose a support obligation on the father.

[7] In Browning, the court found that the child was eligible for support at the time of the application. In Clancy, a claim was being made for a child who was not eligible for support when a separation agreement was signed nor when the parent issued a motion to change that agreement (the separation agreement and the motion to change it were primarily related to the parties' other three children). These facts did not warrant an examination of exceptions to the D.B.S. rule.

[8] The length of time taken to bring the application is an important factor. In Louie v. Lastman the court writes at paragraph 13:

….it is not open to the appellants to come forward and make a support claim decades after they are no longer dependent.

[9] The court is conducting this calculation as of September 30, 2015, as these are the figures that were provided by the parties. The final child support order continues to accrue after that date and the father will be credited for support payments made after October 1, 2015, as reflected in the records of the Family Responsibility Office.

[10] Approximately 50% of these arrears accumulated during the period when the father did not pay any child support to the mother.

[11] This means that the total amount of ongoing and arrears payments shall be $1,200 per month.