Court File and Parties
Court File No.: D41015/06 Date: 2016-10-11
Ontario Court of Justice
Between:
Orvel Henry Acting in Person Applicant
- and -
Melanie Smith Respondent
Counsel: Glenda Perry, for the Respondent
Heard: August 2 and October 7, 2016
Justice: S.B. Sherr
Reasons for Decision
Part One - Introduction
[1] The respondent (the mother) has brought a motion to change the final access order of Justice Carole Curtis, dated June 18, 2008, to permit her to relocate with the parties' 11-year-old child (the child) to Barbados for one year. She also seeks to change the final support order made by this court on June 21, 2007 (the existing support order) retroactive to January 1, 2008.
[2] A trial of the mobility issue was conducted on August 2, 2016. The court gave oral reasons and permitted the mother to move with the child to Barbados for one year. Specified access was ordered for the applicant (the father). Based on the father's representation that he was earning annual income of $58,000, the court made a temporary without prejudice order that he pay the Child Support Guidelines (the guidelines) table amount for one child of $527 each month starting on September 1, 2016. The court ordered financial disclosure to be produced by both parties and scheduled the balance of the motion to change (concerning the remaining support issues) to be heard on October 7, 2016.
[3] On the return of the motion to change, the father asked the court to base his ongoing child support obligation on his stated annual income of $63,000. He opposed the mother's request for a retroactive support order.
[4] The issues for the court to decide are:
a) Should an order for retroactive support be made?
b) If so, what should be the start date for support?
c) What is the father's income for the purpose of calculating his ongoing support obligation?
d) How should support arrears, if any, be paid?
Part Two – Background Facts
[5] The father is 35 years old. He lives with his mother.
[6] The mother is 34 years old. She has a 5-year-old child, from another relationship, who lives with her and the child.
The parties never lived together. They have the one child together.
[7] The father first brought this case to court on April 20, 2006.
[8] On July 7, 2006, this court granted sole custody of the child to the mother.
[9] On June 21, 2007, this court made final orders regarding access and child support. The court ordered that the father pay child support in the amount of $367 each month, starting on July 1, 2007. This was based on the father's annual income of $40,000.
[10] On June 18, 2008, Justice Curtis made a final order changing the access terms. This was pursuant to a motion brought by the father.
[11] The child has always lived with the mother.
[12] The father has regularly exercised his access with the child.
[13] The father has paid the child support set out in the existing support order.
[14] This case did not return to court until June 13, 2016, when the father moved to prevent the mother from removing the child from Canada. The court granted this relief and ordered an expedited trial of the mobility issue, as the mother had a time-sensitive employment opportunity in Barbados.
[15] The mother and child are now in Barbados.
[16] The mother provided the financial disclosure ordered by the court. The father did not.
Part Three – Retroactive Support
3.1 Legal Considerations
[17] The mother's motion to change support is governed by subsection 37(2.1) of the Family Law Act which reads as follows:
Powers of court: child support
(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33.
[18] The Supreme Court of Canada 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:
Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
The conduct of the payor parent.
The circumstances of the child.
The hardship that the retroactive award may entail.
[19] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.
[20] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).
[21] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S., par. 121).
[22] The recipient will lack a reasonable excuse where they knew higher payments were warranted but chose to do nothing about it (D.B.S., par. 101).
[23] The difference between a reasonable and unreasonable delay is often determined by the conduct of the payor. If they inform the recipient of income increases in a timely manner, do not pressure or intimidate the recipient, they will have gone a long way to showing the delay was unreasonable (D.B.S., par. 102).
[24] The court should take an expansive view of what constitutes blameworthy conduct. Blameworthy conduct is anything that privileges the payor's own interests over the children's right to an appropriate amount of support (D.B.S., par. 106).
[25] The more material the increase in income, the less likely the payor will be presumed to believe they were meeting their obligations (D.B.S., par. 108).
[26] Courts ordering a retroactive award must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable guidelines tables is not required — nor is it recommended. While the date of effective notice should be chosen as a general rule, this will not always yield a fair result. Unless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case (D.B.S., par. 130).
[27] 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 (D.B.S., par. 125).
3.2 Reason for Delay
[28] The mother deposed in her June 26, 2016 affidavit that she first broached the subject of child support with the father 3 to 4 years ago when her relationship with the father was improving. She said that the father indicated that he had to take his paperwork in to get his income tax returns completed. She followed up with him a couple of times to see if he had sent in his paperwork. He kept telling her that he hadn't done it. The mother deposed that she realized her requests were going nowhere and pushing the father further would just lead to problems. She did not ask him again for increased support until she issued her motion to change on June 26, 2016.
[29] The mother provided some justification for her delay in bringing her retroactive support claim.
[30] The mother deposed that she had her worst interactions with the father whenever she raised the issue of money. She had considerable conflict with him over this issue during 2006 and 2007. She said that the father would repeatedly accuse her of being after his money. He would become agitated, upset and aggressive with her for raising the issue. She felt that the only way to have peace for her and the child was to not mention child support. The father is likely right that the mother would have never made a claim for retroactive child support if he hadn't first brought the matter to court to prevent her from taking the child to Barbados.
[31] The court was able to observe first-hand what the mother was talking about. The father was disproportionately dramatic and agitated about the mother's support request. He made accusations that she was only seeking money for revenge and castigated the mother personally, as well as her parenting. He kept interrupting the submissions of counsel for the mother during the court appearance on October 7, 2016 and at one point stormed out of the court claiming he would not return. He returned.
[32] The father alternated pleading with the court not to order retroactive support and threatening that if it was ordered he would quit his job and end up in a mental institution like his brothers.
[33] On August 2, 2016, the court had ordered that the mother pay for the transportation costs for the child to come to Canada to spend the winter school break with the father. It also ordered that the father pay the transportation costs for the child to come to Canada during the March school break in March 2017 to be with him. The father declared on October 7, 2016 that he would not be paying to have the child come to Canada in March 2017. He told the court, "there was peace, now there is war". The father was unsubtly sending the court the message that he was going to punish the mother (and indirectly the child) if retroactive support was ordered.
[34] The father deposed that the mother only brought up the issue of increasing child support a few months ago, but that she changed her mind a few days later.
[35] The court preferred the mother's evidence about when she first broached the issue of child support with the father. The mother provided clear evidence about this interaction. Her evidence that the father avoided providing financial disclosure to her is consistent with his incomplete disclosure and non-compliance with the financial disclosure order in this case. Her evidence about the father's unreasonably hostile and aggressive reactions to her raising the support issue was corroborated by the father's conduct in court.
[36] The court will use July 1, 2013 as the date of effective notice of the mother's request to increase support.
3.3 Blameworthy Conduct
[37] The father has engaged in some blameworthy conduct.
[38] The father did not advise the mother about increases in his income. By 2013, his income was more than 50% higher than it was in 2007, when the existing support order was made.
[39] The father did not provide financial disclosure or increase his support payments after July 1, 2013. At this point, the mother had asked for this and the father knew or should have known that he had an obligation to increase support. He certainly should have provided the mother with his financial disclosure.
[40] The father's blameworthy conduct is mitigated by:
a) Maintaining the support payments under the existing support order in good standing.
b) Maintaining the child on his medical plan through work.
c) The mother appearing (to him) to be content with the support that was being paid until July 1, 2013.
d) The existing support order did not require him to provide annual financial disclosure.
3.4 Circumstances of the Child
[41] There was no evidence that the circumstances of the child were disadvantaged by the father's failure to pay the appropriate guidelines table amount of support. However, the mother has had to go into significant debt to meet the child's needs.
3.5 Hardship
[42] It is difficult to assess this issue because the father filed an incomplete financial statement and did not provide the financial disclosure ordered by the court. The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines. See: Smith v. Pellegrini, [2008] O.J. No. 3616; Maimone v. Maimone, [2009] O.J. No. 2140. An adverse inference will be drawn against the father due to his lack of financial disclosure.
[43] The father did not list any assets on his financial statement, writing in that it was not applicable.
[44] The father acknowledged that he has a pension through work and bought a 4-door Lexus vehicle in 2016. Neither of these assets were listed on his financial statement.
[45] A review of the father's income and expenses in his financial statement show a large monthly surplus.
[46] It is likely that the retroactive order sought by the mother would cause some hardship to the father. However, the retroactive order that will be made by the court should not cause him hardship.
3.6 Final Analysis
[47] Taking into account all of these factors, the court finds that a retroactive support order should be made.
[48] The court finds the mother's request for an 8-year retroactive support adjustment to be excessive. The mother did not ask for an increase in child support or financial disclosure until about July 1, 2013. The father was paying the court-ordered child support. He was conducting his financial affairs on the understanding that he was compliant with his support obligations. His interest in certainty was reasonable at this point. The circumstances of the child were not disadvantaged and such an order would cause the father hardship.
[49] The father's interest in certainty became unreasonable and ended when the mother sought increased child support and financial disclosure from him on or about July 1, 2013. He knew or ought to have known at that point that his support payments were inadequate.
[50] While ordinarily the court would expect a support recipient to be more proactive about pursuing increased support after broaching the subject, the court understands why the mother did not do so and will not reduce the retroactive term of the support order because of her delay in bringing her motion after July 1, 2013.
[51] As set out in D.B.S., 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 (in the majority of cases, up to three years in the past). This date represents a fair balance between certainty and flexibility. Balancing all of the factors set out above, the court will not deviate from this principle in this case.
[52] The court will make its support order retroactive to July 1, 2013.
Part Four – Ongoing Child Support
[53] The father is a T4 employee at CN Railways.
[54] The father told the court that his current annual income is $63,000.
[55] At the August 2, 2016 hearing, the court made a temporary without prejudice order for child support based on the father's representation that he has annual income of $58,000.
[56] The court told the father on August 2, 2016 that it would accept his representation of income on a temporary basis, but based on his year-to-date pay stub, it appeared that he was on pace to earn closer to $72,000 for 2016. He was ordered to provide updated pay stubs prior to the return date.
[57] The father did not comply with the financial disclosure order. He did not bring updated pay stubs to court, which may have shown that he was on pace to earn a lower income in 2016 than was projected in his pay stub. An adverse inference is drawn against the father for his failure to do this. The logical inference is that the father is on pace to earn as much, if not more, income than was projected in that pay stub.
[58] Wherever possible, the court should use the most current income information available is assessing income for child support purposes. See: Vanos v. Vanos, 2010 ONCA 876; Wright v. Christie, 2011 ONCJ 109.
[59] The best evidence of the father's 2016 income is his pay stub showing gross year to date income of $36,296 as of June 30, 2016. This projects to an annual income of $72,592. The father's union dues need to be deducted from this amount. Based on his pay stub, this projects to about $950 for 2016, leaving the father with an annual income of $71,642 for support purposes starting on January 1, 2016.
[60] Although not specifically pleaded, the father seemed to be making an undue hardship claim in his material. The father led no evidence to support an undue hardship claim pursuant to section 10 of the guidelines. An adverse inference is drawn against him for his failure to provide financial disclosure.
[61] It is also clear from the evidence filed, that the mother's standard of living is much lower than the father's. The father's claim for undue hardship is dismissed.
Part Five – Calculation of Father's Support Obligations
5.1 2013
[62] The father's gross income in 2013 was $63,391. His union dues of $829 are deducted from this, leaving him an annual income of $62,562 for support purposes.
[63] The guidelines table amount at this income is $570 each month. The father paid $367 each month.
[64] The father owes the mother the differential of $203 each month after July 1, 2013. This comes to $1,218 ($203 x 6 months).
5.2 2014
[65] The father's gross income in 2014 was $68,502. His union dues of $854 are deducted from this, leaving him an annual income of $67,648 for support purposes.
[66] The guidelines table amount at this income is $618 each month. The father paid $367 each month. The differential is $251 each month.
[67] The father owes the mother $3,012 for 2014 ($251 x 12 months).
5.3 2015
[68] The father's gross income in 2015 was $66,829. His union dues of $844 are deducted from this, leaving him an annual income of $65,985 for support purposes.
[69] The guidelines table amount at this income is $603 each month. The father paid $367 each month. The differential is $236 each month.
[70] The father owes the mother $2,832 for 2015 ($236 x 12 months).
5.4 2016
[71] The father's projected gross income in 2016 is $71,642 as calculated in paragraph 59 above.
[72] The guidelines table amount at this income is $653 each month. The father paid $367 each month. The differential is $286 each month.
[73] The father owes the mother $2,860 for 2016 ($286 x 10 months).
5.5 Total
[74] The father deposed that his support payments are in good standing. However, the court did not receive an updated statement of arrears from the Family Responsibility Office. To avoid any errors, the court will not set the outstanding arrears, but rather will set out the additional support that the father will be required to pay the mother as of this date. If there are any arrears presently outstanding, this amount will be added to that total.
[75] The father owes the mother an additional $9,922 in support as of this date ($1,218 + 3,012 + 2,832 + 2,860) as calculated in paragraphs 64 to 75 above.
[76] In the event that the father has paid child support over and above the $367 each month required in the existing support order he will be credited for these additional amounts paid. The records of the Family Responsibility Office shall be determinative as to whether there are any such credits.
[77] The court will give the father the opportunity to pay the support arrears over a period of about three years. This comes to $275 each month.
Part Six – Conclusion
[78] A final order shall go as follows:
a) The father shall pay child support to the mother in the sum of $653 each month, starting on November 1, 2016. This is the guidelines table amount for one child, based on the father's annual income of $71,642.
b) The father owes the mother an additional $9,922 in child support, as calculated in this decision. In the event that the father has paid additional child support over and above the $367 each month required in the existing support order he will be credited for these additional amounts paid. The records of the Family Responsibility Office shall be determinative as to whether there are any such credits.
c) The father shall pay the support arrears at the rate of $275 per month, starting on November 1, 2016.
d) Nothing in this order precludes the Director of the Family Responsibility Office from collecting arrears from any government source (such as income tax or HST returns) or from any lottery or prize winnings.
e) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year.
f) The Director of the Family Responsibility Office is requested to adjust its records in accordance with this order.
g) A support deduction order shall issue.
[79] If the mother seeks costs, she shall make written submissions by October 25, 2016. The father will then have until November 9, 2016 to make a written response. The written submissions shall not exceed three pages (not including any offer to settle or bill of costs) and shall be delivered to the trial coordinator's office on the second floor of the courthouse.
Released: October 11, 2016
Justice S.B. Sherr