Court File and Parties
Date: February 15, 2017
Court File No.: 117/16
Ontario Court of Justice
In the matter of an Application under the Interjurisdictional Support Orders Act, 2002 S.O 2002, Chapter 13
Between:
(a) Kiranjeet Kaur Garcha Claimant
(b) — AND —
(c) Hargobind Singh Respondent
Before: Justice Barry M. Tobin
Heard on: January 25, 2017
Ruling released on: February 15, 2017
Counsel:
- Richard Gordner, for the Respondent
- Marlene Gold, Counsel for the ISO Unit appearing as "friend of the Court"
RULING
The Issue
[1] On this Interjurisdictional Support Orders Act, 2002 (the "Act") Application, the issue to be addressed in these reasons is the Claimant's request for retroactive child support.
[2] The Claimant asks for child support retroactive to the date of the child's birth, November 10, 2013.
Facts
[3] The Claimant and the Respondent are the parents of the child, Veer Garcha, born November 10, 2013 ("the child"). The child is also known as Desmond Garcha.
[4] The parties did not cohabit.
[5] The child and the mother reside in Saskatchewan.
[6] The Respondent resides in Ontario.
[7] The Respondent did live in Saskatchewan from 2010 until August 2013.
[8] In September 2013 he came to Ontario to study at the University of Western Ontario. In December 2014 earned a Master's Degree in Engineering.
[9] As soon as she found out that she was pregnant, the Claimant informed the Respondent.
[10] Subsequent to the birth of the child, she told the Respondent she gave birth to a son.
[11] As the Respondent would not acknowledge responsibility for the child, she started this child support case under the Act in July 2014.
[12] The original notice of hearing made returnable in London, Ontario was issued December 19, 2014 (the "London case"). It was served upon the Respondent on December 24, 2014.
[13] Within the London case, DNA testing was ordered on February 2, 2015. This was the last endorsement made in the London case. The DNA testing was completed on May 27, 2015.
[14] A new notice of hearing first returnable at Windsor on April 6, 2016 was issued March 8, 2016 (the "Windsor case").
[15] The notice of hearing in the Windsor case, together with the DNA test report dated May 27, 2015, were served upon the Respondent on March 21, 2016.
[16] When the Windsor case was before this Court on August 31, 2016, the Respondent acknowledged his obligation to pay child support on a prospective basis.
[17] On August 31, 2016, the Respondent was ordered to pay table amount of child support in the amount of $367.00 per month based upon his income for child support purposes of $40,692.00. Also, in accordance with ss. 11(2) of the Act, the Court requested further evidence and documents from the claimant related to the issue of retroactive child support.
[18] The Claimant filed further evidence in the form of an affidavit, sworn October 21, 2016.
[19] The Respondent responded to this further evidence by way of affidavits sworn December 21, 2016 and January 25, 2017.
[20] The parties provided evidence with respect to their respective financial circumstances.
Financial Circumstances of the Claimant
[21] The Claimant paid for all of the expenses associated with caring for the child. After she returned to work following her maternity leave she had to take further time off to attend medical appointments because of the child's health issues. Taking time off resulted in her losing income. On occasion, she had to take extended periods of 7 to 10 days off from work, and as a result, lost two jobs.
[22] The Claimant is currently indebted in the amount of approximately $25,000.00 which she incurred in her "attempt to manage everything."
Financial Circumstances of the Respondent
[23] The Respondent's income from 2013 has been as follows:
| Year | Line 150 Income |
|---|---|
| 2013 | $28,322.00 |
| 2014 | $26,125.00 |
| 2015 | $40,699.00 |
| 2016 | $40,692.00[1] |
[24] For the year 2017 the Respondent based his income on that earned in 2016 but, he does not expect it to be that high.
[25] In January 2014 the Respondent had outstanding debts in the amount of $32,077.00 which he incurred to attend school. He was then paying $320.00 per month out of his then anticipated income of $24,000.00 per year toward payment of these debts.
[26] By August 2016 the debts were reduced to $29,900.00 and were being paid at the rate of $476.00 per month.
[27] As of August 2016 he had the following assets; a car worth $1,000.00, two bank accounts with a total of $2,000.00 in them, and a half-interest in a numbered Ontario Corporation valued at $1,500.00.
Legal Considerations
[28] The Respondent does not dispute that the child is entitled to support under the laws of the jurisdiction where the child ordinarily resides: ISOA, s. 13¶1.
[29] The amount of support to be paid by the Respondent to the Claimant as child support is determined in accordance with the law of Ontario: ISOA, s. 13¶3.
[30] The Supreme Court of Canada in D.B.S v. S.R.G.; Laura Jean W. v. Tracey Alford R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, outlined the principles and factors to be applied in determining a retroactive child support claim. Those principles and factors relevant to this case are summarized as follows:
Parents have an obligation to support their children;
The amount of support depends upon the amount of a parent's income;
The parent's obligation to pay and the child's right to support exist independent of statute;
Parents who do not pay child support based on their income have not fulfilled their obligation to their children;
Where a parent has not fulfilled his or her obligation, it is open to the Court to award child support in respect of a period prior to the date original court proceedings are brought;
In deciding whether to make a retroactive order for child support, the Court must balance the support payor's interest in certainty with the need for fairness to the child and flexibility;
In cases where there is no court order or agreement, it is unreasonable for a non-custodial parent to believe that he or she was meeting his or her child support obligations if the amount of child support is not based on that person's income. The non-custodial parent's interest in certainty is not very compelling in this circumstance;
In achieving this balance, the Court is to take into account the following four factors:
a) the reasons for the recipient's delay in seeking child support;
b) the conduct of the support payor;
c) the past and present circumstances of the child, including the child's needs at the time support should have been paid; and
d) whether a retroactive order will entail hardship.
None of these factors is decisive and all should be considered;
If the Court determines that a retroactive award should be ordered, generally the start date will be the date of effective notice by the recipient; and
Effective notice does not require the recipient to start a case; all that is required is that the topic be broached. Once that has been done, the payor can no longer assume the status quo is fair.
Application of Legal Considerations
[31] The Respondent received formal notice of the child support claim against him when he received the notice of hearing under the Act in the London case on December 24, 2014. The Respondent's evidence is that "it was not until [he] received the notice of hearing dated December 19th, 2014 that [he] had any notification that it was [the Claimant's] intention to seek child support". He claims this is when he received effective notice.
[32] He disputed paternity within those proceedings and DNA testing was ordered. The test was completed on May 27, 2015.
[33] The Respondent did not learn of the results of the DNA test until March 2016.
Delay in Bringing Child Support Claim
[34] The Respondent knew that the Claimant was pregnant.
[35] The Claimant contacted the Respondent by telephone to tell him that on November 10, 2013 she gave birth to a boy.
[36] The Respondent did not believe he was the child's father.
[37] In response to this denial of responsibility, the Claimant started a claim for child support against the Respondent by application sworn July 21, 2014.
[38] The Respondent did not unreasonably delay the bringing of her child support claim.
[39] There has been delay in having this case finally determined by the Court. The case originally was made returnable in London. Within the London case steps were taken, including the making of an order for DNA testing. There was delay in receiving the DNA test results through no fault of either party.
[40] It was not until March 8, 2016 that the notice of hearing under the Act was issued in respect of the Windsor case.
[41] The Claimant bears no responsibility for the length of time it took the matter to reach this court.
Conduct of Respondent
[42] Blameworthy conduct is anything that privileges the payor's interests over the right of the child to an appropriate amount of support.
[43] He wanted proof that he was the child's biological father. Both he and the Claimant participated in DNA testing in a timely manner.
[44] The DNA test results disclosed that the Respondent's probability of paternity was 99.9999999%. Upon learning of this result, the Respondent acknowledged his responsibility to pay child support.
[45] I find that the Respondent did not engage in the type of blameworthy conduct contemplated in DBS. He did not hide his income, intimidate or mislead the Claimant.
The Past and Present Circumstances of the Child
[46] The evidence discloses that the Claimant endured financial difficulty following the birth of the child. Her income was reduced while on maternity leave. She did not have the benefit of child support from the Respondent to assist her in meeting the child's needs. Her expenses increased as a result of her childcare responsibilities.
[47] She lost employment.
[48] She incurred debt.
[49] There is no suggestion that the child's needs were not being met.
[50] I infer from the evidence that the Claimant struggled financially to make sure that the basic needs of the child were met.
[51] Child support from the Respondent would have eased the Claimant's financial burden.
Hardship
[52] The Respondent has employment which can afford him an income of approximately $40,000.00 per year.
[53] At present, the Respondent has no savings and continues to pay off student loan debt.
[54] He does not appear to have the ability to pay a lump sum toward retroactive child support. Any hardship arising due to a retroactive child support order can be minimized by making it payable in installments.
Start Date of Child Support
[55] Having regard to all of these circumstances, it is proper to award child support for a period of time predating the commencement of the Windsor case, that is, prior to March 8, 2016.
[56] The Applicant seeks child support from the date the child was born. The claimant's evidence is not clear about the date she raised that the subject of child support with the respondent prior to starting the London case.
[57] The Respondent submits that the appropriate start date should be March 2016 because that is the date when he first learned of the DNA test results.
[58] I do not agree that the Respondent's child support obligation should start when test results were made known to him. A person's entitlement to receive child support should not be prejudiced because of delay in paternity test results being revealed, that were not caused by him or her. The person who seeks a DNA test to establish paternity should not be entitled to avoid responsibility for child support during the period the parties were awaiting the results.
[59] In this case, the Respondent was made aware of the child support claim. His refusal to accept the advice of the Claimant that he was the father – just because he thought it was possible he was not – does not absolve him of his responsibility to support the child. He took a chance in advancing the position that he was not the father. He did not to prepare for the possibility that he was by setting aside child support he might be obliged to pay. The consequences of his not doing so should not be visited upon the child.
[60] On the evidence, the latest date that the Respondent was first made aware of the child support claim was December 24, 2014. This is the date he was first served with the Notice of Hearing and supporting documents issued in connection with the case returnable in London.
[61] In balancing all of the DBS factors, I find that child support should be paid by the Respondent to the Claimant for this child starting January 1, 2015 ending August 31, 2016. The start date is the first month following formal notice having been given to the Respondent. It is also the effective date of notice according to him. An end date is required because this Court's Order of August 31, 2016 provided for the Respondent's obligation to pay prospective child support starting September 1, 2016.
[62] The monthly amount of table child support will be $360.00 per month based upon the Respondent's income for child support purposes of $40,699.00 during the period January 1, 2015 to August 31, 2016.
[63] The immediate arrears arising from this Order shall be paid at the rate of $120.00 per month, until paid in full. The start date for the payment of these arrears shall be April 1, 2017 to give the Respondent a brief period to organize his finances. However, if the Respondent is more than 60 days in default of ongoing or arrears of child support, the entire amount of arrears then owing shall immediately become due and payable.
[64] As long as he is required to pay child support, the Respondent shall advise the Claimant of his income by June 15 of each year starting June 15, 2017 by providing her with a copy of his prior year's income tax return, and notices of assessment and if any notice of reassessment.
Released: February 15, 2017
Original signed and released
Justice Barry M. Tobin
[1] Based upon financial statement sworn August 18, 2016.