G.S. v. S.S.

Court File No.: Toronto D1360/00

Date: 2017-03-10

Ontario Court of Justice

Between:

G.S., Applicant (Moving Party)

— AND —

S.S., Respondent (Responding Party)

Before: Justice Curtis

Heard on: 4 August, 12 and 13 October 2016

Reasons for Judgment released on: 10 March 2017

Counsel:

Janet Preston, for the Applicant

Respondent appeared in person and unrepresented

CURTIS, J.:

INDEX

1. Over-view
2. Background Facts
3. Litigation History
4. Presentation of the Case
5. The Test on the Motion to Change
6. The Table Amount of Support
   • a) Support Payment History
   • b) Money Sent Directly to M.
   • c) Determining the Father's Income for Child Support Purposes
     • i. The Father's Education and Abilities
     • ii. The Father's Income
     • iii. The Law Regarding the Father's Income
     • iv. Imputing Income
     • v. Imputing Income to the Father
   • d) What is the Proper Start Date for Adjusting Child Support?
     • i. What Is the Legal Status of the Support Obligation?
     • ii. Are There any Legal Excuses/Exemptions that Apply (the Factors To Be Considered)?
       • a. The Age of the Child at the Time of the Claim: Eligibility and the Timing of the Claims for Retroactive Child Support
       • b. Was there Delay by the Recipient?
         • i. The Father's History of Abusing the Mother and the Children
         • ii. The Issue of Delay
       • c. Blameworthy Conduct of the Payor
         • i. This Father's Blameworthy Conduct
       • d. Hardship in the Circumstances of the Children
       • e. Hardship to the Payor
   • e) What is the Proper Retroactive Amount to Be Ordered? And from What Start Date?
     • i. Start Date of the Order
     • ii. The Fairness Umbrella Regarding Retroactive Child Support
     • iii. The Mother's Claims for Retroactive Support
     • iv. The Mother's Claims for Retroactive Adjustments of the Table Amount and the Children's Eligibilities
     • v. C.'s Eligibility for Support
7. Retroactive Child Support and s. 7 Expenses
   • a) The s. 7 Special Expenses and Child Support
   • b) The Mother's Claims for S. 7 Expenses
     • i. C.
     • ii. M.
   • c) Legal Issues Regarding the Mother's s. 7 Claims
     • i. The Question of Entitlement: Do All the Expenses Claimed Properly Qualify as s. 7 Expenses?
     • ii. The Question of Amount: Is the Mother Entitled to Re-imbursement for the Full Amounts she has Claimed?
     • iii. What is the Father's Proper Proportionate Share of those Amounts?
     • iv. The Children's Obligations to Contribute to Their Own s. 7 Expenses
8. Other Claims
   • a) Spousal Support
   • b) Medical and Dental Coverage
   • c) Requirements to Notify Mother of Changes in Address and Employment Status
9. Orders
10. Conclusion
11. Costs
12. Appendix A: Details re S. 7 expenses Claimed

Over-view

1. This is the decision in the mother's motion to change. She is asking the court to change a consent final order made by Nevins, J. on 11 February 2003, suspending the child support contained in an earlier consent temporary order (made by Nevins, J. on 22 August 2001).

2. The mother started this motion to change on 22 June 2015 (and amended it on 2 March 2016) asking (among other things):

   a) to reinstate child support from 1 January 2004, and to adjust the table amount in accordance with the table amount payable on the father's income for each year;

   b) to order s. 7 expenses from 1 January 2004;

   c) that income be imputed to the father consistent with his training and ability;

   d) for medical, extended health, drug and dental coverage for M.;

   e) for spousal support (starting after the child support obligation is completed);

   f) for annual financial disclosure;

   g) for interest; and,

   h) for costs.

3. The father's response filed on 28 June 2016 asked:

   a) to dismiss the mother's motion to change (this was not specifically claimed, but was implicit in the claims made);

   b) to give him credit for money paid since February 2009 for child support;

   c) to change the table amount of child support to the proper amount based on his actual income, as of November 2014 only; and,

   d) for s. 7 expenses for M., to be paid only when he earns sufficient income in future.

4. The issues for decision are these:

   a) Should child support be reinstated, and if so, for which child?

   b) What is the proper income of the father for child support purposes?

   c) Should there be a retroactive adjustment of the child support table amount in accordance with the father's income, and if so, for which child, and what is the proper start date?

   d) Should there be a retroactive adjustment of child support for special expenses in accordance with the father's income and the special expenses incurred, and if so, for which child, for which expenses, and what is the proper start date?

Background Facts

5. The Applicant (the moving party) is the mother, G.S., 51 years old. She works as an aesthetician in Toronto, and earns about $25,000 per year.

6. The Respondent (the responding party to the motion) is the father, S.S., 58 years old. It is not clear what the father has worked at recently, or even if he has worked. He is trained as a mechanical engineer and as an ultrasound sonographer and x-ray technician.

7. The parents were married on 19 June 1995. They separated on 21 October 2000. They were divorced on 25 September 2005.

8. There are two children of the marriage:

   • C., born 1988 (28 years old); and,
   • M. (formerly M., whose name was legally changed in 2014), born 1996 (20 years old).

Litigation History

9. These are the orders made in the original litigation, started in January 2001:

   a) on 25 July 2001, a temporary order by Nevins, J. for $326 per month child support for two children from 1 July 2001 on imputed income of $23,328;

   b) on 22 August 2001, a consent temporary order by Nevins, J. for $270 per month child support for two children from 1 September 2001 on imputed income of $18,800 and requiring annual financial disclosure by the father;

   c) on 7 November 2001, a consent temporary order by Nevins, J. suspending the support order of 22 August 2001 as of 31 October 2001, and ordering specific disclosure; and,

   d) on 11 February 2003, a consent final order by Nevins, J. suspending the support order of 22 August 2001, ordering the father to notify the mother in writing of the start date of employment, and ordering annual financial disclosure.

10. The father lives in Maryland. On 27 November 2014 the mother started an Interjurisdictional Support Orders Variation Application under the Interjurisdictional Support Orders Act, S.O 2002, c. 13 and the Uniform Interstate Family Support Act, 1996 (American legislation). She was advised, by the Interjurisdictional Support Orders Unit, of the Family Responsibility Office (by letter dated 14 May 2015) that this process was unavailable to her, as Maryland would decline jurisdiction to change an Ontario support order. As the order could not be changed interjurisdictionally, she was advised she had to bring a motion to change in Ontario.

11. The father never raised the issue of jurisdiction in the motion to change and attorned to the jurisdiction of Ontario by responding to the motion to change and fully participating in the litigation. The court finds that Ontario has jurisdiction to change the order.

12. These are the relevant orders made in the motion to change case:

    a) the time was extended several times for the father to serve and file his response to the motion to change (on 23 September 2015 and 18 May 2016);

    b) on 4 February 2016, in a temporary order, the final order of 11 February 2003 was changed, and the suspension of the court order for child support made 22 August 2001 was lifted. The order for $270 per month for two children on income of $18,800 was to continue (from 1 February 2016) and all of the clauses of the order of 11 February 2003 continued to be in force. This order is without prejudice to the parents' rights to claim a different start date and a different amount.

13. The mother acknowledges that support for C. (28 years old) should end on 31 December 2012.

14. The father acknowledges that he should pay one-half of M.'s post-secondary expenses.

Presentation of the Case

15. The case was a motion to change and was argued as a motion. The parents were given multiple opportunities to file additional material before the case was heard, and both sides did file additional material. There was a large amount of material filed by each side. Neither parent asked that there be a trial of these issues. Neither parent asked to cross-examine on the affidavits filed.

16. The parties were unrepresented at the start of this case in 2015. Both parents were cautioned that the case was complicated and that they should get lawyers. The endorsement of 18 November 2015 noted that the parties were strongly advised to get lawyers. The claims to change support dealt with both table amount and s. 7 expenses, and the claims went back over many years.

17. The mother came to the next court date (4 February 2016) with a lawyer (on a limited scope retainer). The father was then specifically cautioned, again, that there were legal issues which he should be presenting and that he could not properly defend this case without a lawyer. There were additional specific endorsements (4 February and 18 May 2016) advising him that he needed the help of a lawyer. In all, there were three endorsements recommending that he should get a lawyer to help with this motion to change. He chose not to hire a lawyer.

The Test on the Motion to Change

18. The mother's motion to change the child support terms of the order made 11 February 2003 was bought under s. 37(1) and (2.1) of the Family Law Act, R.S.O. 1990, c. F. 3, as amended ("F.L.A."), and s. 14 of the Child Support Guidelines, Ont. Reg. 391/97, as amended ("the Guidelines"):

Application for variation

37. (1) An application to the court for variation of an order made or confirmed under this Part may be made by,

(a) a dependant or respondent named in the order;

(b) a parent of a dependant referred to in clause (a);

(c) the personal representative of a respondent referred to in clause (a); or

(d) an agency referred to in subsection 33 (3). 1997, c. 20, s. 6.

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. 1997, c. 20, s. 6.

Variation of Orders for the Support of a Child

Circumstances for variation

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

15. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of the child or any provision thereof.

16. In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.

17. In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

18. In the case of an order made under the Act, the coming into force of subsection 33 (11) of the Act. O. Reg. 391/97, s. 14 ; O. Reg. 446/01, s. 3.

19. Sections 37(2.2) to 37(2.6) of the Family Law Act and the Child Support Guidelines provide the framework within which the court is to undertake the calculation of child support in a variation proceeding. The object of the child support provisions set out in the Act and the Guidelines is to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient: D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (referred to as "D.B.S." or "the D.B.S. cases"); Ethier v. Skrudland, 2011 SKCA 17; Geran v. Geran, 2008 SKQB 460; Geran v. Geran, 2011 SKCA 55; Meyer v. Content, 2014 ONSC 6001, para. 65.

20. Both s. 37(2) and (2.1) of the F.L.A. give a court jurisdiction to "discharge, vary or suspend" the support "prospectively or retroactively". This gives the court jurisdiction to vary a child or spousal support order retroactively: Mondino v. Mondino, 2013 ONSC 7051, para. 82.

21. The powers of the court on a motion to vary a child support order are very broad. The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis. The court's authority with respect to arrears is similarly broad, and includes the power to rescind the arrears and interest, either entirely or in part, or to reduce the amount of arrears payable. The powers of the court in a variation proceeding also include the power to order appropriate set-offs: Campbell v. Chappel, 2006 CarswellNWT 28 (S.C.); Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 19.

22. As set out in section 37(2.1) of the Family Law Act, a threshold issue that must be addressed in a motion to change child support is whether there has been a change in circumstances within the meaning of Guidelines since the order was made, or whether evidence that was not available at the hearing respecting the order has now become available. Section 14.1 of the Guidelines provides that where the amount of child support set out in the order includes a determination made in accordance with the Tables under the Guidelines, any change in circumstances that would result in a different order for the support of the child constitutes a change that gives rise to the making of a variation order. Accordingly, a change in the payor's income or evidence that the child is no longer entitled to child support under the Family Law Act would satisfy the threshold test of whether there has been a change in circumstances since the previous order was made: Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 20.

23. Essentially, both parents say there has been a change in circumstances. The father says that the change is the fact that C. is no longer eligible for support. The mother says that the change is that the father earns income now, or should be earning income now, and since at least 2004, and that the children have incurred s. 7 expenses for post-secondary education and other expenses.

The Table Amount of Support

Support Payment History

24. From February 2003 when the support order was suspended until 2009 the mother received no support payments from the father. From 2009 to 2014 she received about 13 payments from the father for a total of $5,388.29. These payments were irregular and infrequent. In some years (2013) there were no payments.

Year and payments	Total paid
2009 (3 payments)	$820.60
2010 (1 payment)	$348.61
2011 (2 payments)	$1,750.26
2012 (2 payments)	$603.63
2013	—
2014 (1 payment)	$1,086.80
2015 (3 payments)	$577.15

25. The father paid no support on a regular basis until after the court case was started. He began paying support in October 2015 when he began to pay $144.06 U.S. per month. This amount appears to have been arbitrary and chosen by the father. He continued to pay that amount, even though there was a temporary court order made 4 February 2016 lifting the final order of suspension made 11 February 2003, and reinstating the original support order from 22 August 2001, for $270 per month from 1 February 2016.

Money Sent Directly to M.

26. At times, the father has given money directly to M.. M. acknowledges that he sent her money sometimes. Below is the mother's evidence about these payments:

Date	Amount
9 July 2013	$473.85
29 July 2013	$307.83
9 Nov. 2013	$314.61
2 December 2013	$319.02
1 January 2014	$159.50
[date], 2014	$545.15
M.'s birthday
7 May 2014	$326.88
8 June 2014	$327.30
8 December 2014	$573.60
7 January 2015	$592.55
6 February 2015	$500.92
25 March 2015	$625.65
[date], 2015	$188.70
M.'s birthday
27 April 2015	$302.63
28 April 2015	$240.42
14 September 2015	$796.20
15 September 2015	$155.16
4 January 2016	$419.07

Year	Total Amount
2013	$1,415.31
2014	$1,932.43
2015	$3,402.23
2016 to 4 January	$419.07
Total	$7,169.04

27. This list of these payments was not addressed by the father and was not disputed. He claims this money is child support. The mother claims it is not child support, that these payments are gifts to M., as the money never came to the mother for the benefit of the cost of supporting M., and that the purpose of these payments was not ever discussed with the mother.

28. Most of these payments were made to M. electronically through PayPal, directly to M.'s PayPal account. The father says he and the mother had a verbal agreement about support. He says that she agreed to accept the child support payments through the PayPal account of M.. He says she never complained to him about the money going to M.'s PayPal account until the court case started in September 2015.

29. The mother did not ask the father to send money by a PayPal account. She did not have a PayPal account. Her evidence was that she agreed he could send the support money through M.'s PayPal account in about 2013. He never told the mother when he was sending money to M.'s PayPal account, and the money was not sent regularly or consistently. All of the money received through M.'s PayPal account went directly to M.. None of it was given to the mother to use as child support.

30. Notwithstanding the fact that the money was not available to the mother to use for support, the father will be given credit for those payments made, less the payments made at the time of M.'s birthdays, which will be counted as gifts to her ($7,169.04 - $733.85 = $6,435.19). He shall be given credit for $6,435.19.

Determining the Father's Income for Child Support Purposes

31. When the support order was suspended on 11 February 2003, the father was receiving social assistance in Ontario. It is not clear how long this continued, but it appears that he did not work in Ontario up until the time he moved to America in 2006.

The Father's Education and Abilities

32. The father is a well-educated man. He has a degree as a mechanical engineer from Russia, and worked there as a mechanical engineer for some time. In 2003, he was certified in America as a registered Diagnostic Cardiac Sonographer, specializing in Adult Echocardiography. In 2004 he was trained at Quarry X-Ray Diagnostic Imaging in Scarborough for general ultrasound. He says that he took x-ray imaging in 2004 to improve his marketability and to gain experience. In 2005 he was certified as a specialist in Abdomen (in sonography). His evidence in 2001 was that a sonography technician could earn about $42,000 to $61,000.

33. On 6 November 2006, the father married Dr. E.S., and they moved to Maryland. They have no children. When he moved to Maryland in 2006 he had no work permit. In 2006 Dr. E.S. got a position as a medical resident at a hospital in Maryland. She graduated as an internal medicine physician in November 2009, and started to work at a hospital in Baltimore as a physician. The father obtained his permanent resident card in the United States in 2011.

34. The father assisted Dr. E.S. to set up a corporation, Dr. S. Corporation in 2014. He works there as manager and receptionist.

35. There was no evidence about where the father's wife, Dr. E.S., currently works or her income. The mother requested information about his wife's income and employment on a Request for Information served on the father on 22 June 2015 (at the start of the motion to change). She also asked for production of the wife's Income Tax Returns, financial statements from any companies owned by either of them, employer's contact information, and detailed sworn financial statements (in the court Form 13) from each of them. Despite the requirements of disclosure in family law cases about support, and despite this very specific request at the very start of the motion to change, he did not disclose his wife's position nor her income, not at any time in the court case, nor at any time during his marriage to her or during their cohabitation.

The Father's Income

36. It is difficult to determine what the father's actual income was over the years. Part of this is due to the inadequate disclosure made by the father. Part is due to the nature of the disclosure made (that is, not disclosing his personal income). This is the information disclosed by the father about his income:

Year	Declared Income Canada	Declared Income U.S.
2000	$20,539
2001	$12,116
2002	$6,774
2003	$6,214
2004	$6,344
2005	$6,416
2006	$5,908
2007	$40,094 (joint)
2008	$39,245 (joint) (business loss was $2,523)
2009	$56,462 (joint) (business loss was $144)
2010	$127,231 (joint) (business loss was nil)
2011	$115,538 (joint) (business loss was $6,634)
2012	$198,274 (joint) (business loss was $2,645)
2013	$161,279 (joint) (business loss was $3,315)
2014	$1,425 (from Dr. S. Corp.)
2015	$7,400 (from Dr. S. Corp.)

37. In a case about child support, the father's obligations under the Family Law Act, the Family Law Rules and the Child Support Guidelines are clear and specific. He is obliged to produce evidence about his personal income for the years in question, He provided information about the business income and the joint losses (joint with Dr. E.S.), from which information it was not possible to determine his personal income. The information produced does not come close to meeting the disclosure requirements.

The Law Regarding the Father's Income

Imputing Income

38. These are the child support issues in this case:

    a) what is the father's income for child support purposes, that is, not what is he earning, but rather, whether there should be income imputed to him for the purposes of child support? and,

    b) what is the proper start date for child support?

39. The purpose of the Child Support Guidelines is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency: Lee v. Lee.

40. Section 19(1) of the Child Support Guidelines addresses imputing income:

19.(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the parent or spouse;

41. Section 1 of the Guidelines stipulates that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. The need to ensure appropriate financial support for the children is dealt with by imputing income. Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he is capable of earning: Drygala v. Pauli, para 31, 32, 35.

42. There is a duty to seek employment in a case where a parent is healthy: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 38.

43. The payor is intentionally under-employed if that parent chooses to earn less than he is capable of earning. That parent is intentionally unemployed when he chooses not to work when capable of earning an income: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 28.

44. Section 19(1)(a) of the Child Support Guidelines permits a court to impute income to a spouse who is intentionally underemployed. When imputing income based on intentional underemployment, a court must consider what is reasonable in the circumstances. The factors to be considered are the age, education, experience, skills and health of the payor, as well as the payor's past earning history and the amount of income the payor could earn if he or she worked to capacity: Drygala v. Pauli, supra, 2002 (Ont. C.A.).

45. A parent cannot pursue an improvident career path at the expense of the child: Evans v. Gravely, para. 10.

46. A parent cannot avoid child support obligations by a self-induced reduction of income: Weir v. Therrien, para 25.

47. The court has a broad discretion to impute income where the father is not working to his potential. In exercising discretion, a court will bear in mind the objectives of the guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution. The fundamental principle is that the court must estimate the actual means which the parent has available for child support.

48. In Duffy v. Duffy, 2009 NLCA 48, para. 35, the Newfoundland and Labrador Court of Appeal set out a list of general principles to be considered regarding child support and when determining whether to impute income:

    a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices;

    b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children;

    c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent;

    d) Imputing income to a parent on the basis that the parent is "intentionally under-employed or unemployed" does not incorporate a requirement for proof of bad faith. "Intentionally" in this context clarifies that the provision does not apply to situations beyond the parent's control;

    e) The determination to impute income is discretionary, as the court considers appropriate in the circumstances;

    f) Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision;

    g) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action; and,

    h) A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.

49. The support recipient bears the burden of proving that the support payor is intentionally under-employed. If the court is not satisfied that the support payor is intentionally under-employed, the inquiry ends there. Once you establish underemployment, the onus shifts to the payor to show one of the exceptions of reasonableness. Parents can take jobs with less money, as long as the decision is reasonable. The onus of proving the payor is intentionally underemployed is on the recipient. If proved, the onus then shifts to the payor to establish an acceptable reason. Intentional underemployment requires a voluntary act by the respondent: Rilli v. Rilli, para 18.

50. There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 38.

51. A spouse is not to be excused from his child support obligations in furtherance of unrealistic or unproductive career aspiration: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 39.

52. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. The court finds that the father is under-employed. Once the court determines that the father is under-employed, the next step is to determine what the father is capable of earning.

53. The determination to impute income is discretionary, as the court considers appropriate in the circumstances: Duffy v. Duffy, supra, 2009 (Nfld. & Lab. S.C. – C.A.), para. 35.

54. Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 44.

55. When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent, the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands, and the hourly rate that the parent could reasonably be expected to obtain: Drygala v. Pauli, supra, 2002 (Ont. C.A.), para 45.

56. In determining a party's capacity to earn income, the principles which the court should consider include the following (from Corcios v. Burgos, 2011 ONSC 3326, para. 40):

    a. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children: L. (N.) v. P. (B.);

    b. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments: Hanson v. Hanson; L. (N.) v. P. (B.), supra;

    c. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations: Lawson v. Lawson; Blake v. Blake, 2000 CarswellOnt 2477 (Ont. S.C.J.);

    d. When a parent experiences a sudden change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities in order to satisfy their obligation to contribute to the support of their children: Barta v. Barta, 2005 CarswellOnt 74 (Ont. S.C.J.); M. (S.D.) v. M. (K.F.), 2004 CarswellBC 70 (B.C.S.C.); Quintal v. Quintal, 1997 CarswellOnt 3213 (Ont. Gen. Div.);

    e. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them: Daulby v. Daulby, 2007 CarswellOnt 7842 (Ont. S.C.J.);

    f. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute: Korwin v. Potworowski, 2007 CarswellOnt 6852 (Ont. C.A.); and,

    g. A parent who decides to stay at home to care for subsequent children, or to work in the home at a reduced rate so that they can continue to care for the children, may be imputed a reasonable income in the absence of evidence to support a finding that the parent's underemployment is required by the needs of the subsequent children within the meaning of section 19(1)(a) of the Guidelines: Lachapelle v. Vezina.

57. Lifestyle can provide the criteria for imputing income: Aitken v. Aitken; Jonas v. Jonas; Price v. Reid, 2013 ONCJ 373.

58. Lifestyle is not income, but rather evidence from which an inference may be drawn that the payor has undisclosed income that may be imputed for the purpose of determining child support: Bak v. Dobell, 2007 ONCA 304, para. 43.

59. The burden of proof is on the payor to satisfy the court on a balance of probabilities the amount of income upon which child support should be based. Where this information is lacking or is insufficient, the court may need to rely on other information. Wage Surveys can be relied on to assist in determining a payor's income: Scholes v. Scholes.

60. The court will usually draw an adverse inference against a party for his failure to comply with the disclosure obligations (as provided for in the Family Law Rules, the Family Law Act, and the Child Support Guidelines) the guidelines and impute income: Smith v. Pellegrini; Maimone v. Maimone.

Imputing Income to the Father

61. The father is a mechanical engineer, a licensed sonographer and a licensed x-ray technician.

62. He was licensed in America in two areas of sonography in 2003 and 2005, and earned an ultrasound qualification in Canada in 2004. However, he chose not to work as sonographer. He also chose not to work in Canada. He moved to America in 2006 without a work permit. He says that he did not work there for many years. The father has said that he could not work in America before getting his American permanent residence card in 2011. He made a choice. The court finds that he was intentionally under-employed.

Father's Education

Year	Qualification	Country
	Mechanical engineer	Russia
2003	Sonography	America
2004	ultrasound technician	Canada
2005	Sonography	America

63. On 23 April 2008 the father set up a company, T[…], in Maryland, despite having no work permit. He advertised that he was the sole employee, he provided teaching, and practical work in medical technology, medical research and medical support services.

64. The father and his wife Dr. E.S. set up a clinic specializing in sonography services on 27 June 2014, called Dr. S. Corp.. The clinic was owned in part or whole by his wife. The father is shown as the clinic manager, corporate secretary, and as the technician at the clinic. Dr. E.S. is the president. He has worked for the clinic since it was established in June 2014, but it appears that he took no pay for first six months.

65. The father says that he is divorced from Dr. E.S.. However, the circumstances around the divorce are unclear, confusing and even suspect. In December 2014, one week after the mother served him with a Request for Financial Information, he started a divorce in America. Dr. E.S. filed a response to the divorce the same day. Although she was a practising physician and had substantial earnings, he did not seek spousal support or a division of property from her. He says they were divorced on 24 May 2016. However, there is evidence to suggest they were still living at the same address as of June 2015 when he was served with more material in the motion to change (he used this address on his bank statements, and his name was still on title to the house). He did not deny that he lived there. There is a suggestion that this was possibly a fabricated separation, to prevent consideration of Dr. E.S.'s income regarding the child support case.

66. M. (now 20 years old) gave evidence about her observations when she visited with her father in the summer. She learned that he was self-employed and that he tutored people when he lived in Canada, as well as when he lived in America, on how to use ultrasound equipment. He also tutored Russian people in America how to speak English. He sold Herbalife (a nutritional supplement). He and his wife opened up a clinic in which he was the manager and the ultrasound technician.

67. The father has lived a comfortable lifestyle over the years since the support order was suspended (on 11 February 2003). He has assets. He and his wife bought a home in Maryland in 2008. In 2008, Dr. E.S. was still a medical resident, and the father was unable to work in the U.S. as he did not have a permanent resident card. He owned a 50% interest in the residence in Maryland, which had a value of $375,000 to $395,000 U.S., as of 30 May 2016. He and Dr. E.S. each have the use of their own cars. The father and Dr. E.S. have maintained a lifestyle which appears inconsistent with his stated income and financial situation. He has an obligation to explain these discrepancies, and he did not do so.

68. The father travels extensively. He takes trips every year to Moldova to see his mother and extended family (he took a trip there in March 2016). He and his wife travel on vacation. He has travelled to South Africa (at least twice), New York, Russia, Italy, Germany, Europe and Mexico. He has taken M. on many vacations (at least to Italy, San Marino, Germany, Holland, Belgium, Luxemburg, and Mexico). On these trips, he paid for all of M.'s expenses. He has passports issued in four countries (Canada, America, Moldova, and Russia). He posts photos of his trips on the Internet.

69. M. gave evidence that on her summer visits to the father she learned that he lived in big four bed-room house with a swimming pool, sauna, and a finished basement, and that he and his wife each drove their own cars.

70. Although the father received certifications in both 2003 and 2005, he appears to have stayed on welfare in Canada in 2005 and 2006. It is unclear if he worked, when he worked and what work he did, if any. It is unclear what income he received from the company owned by Dr. E.S. in 2014. It appears, however, that he used money from Dr. E.S. to pay personal expenses, and that he charged personal expenses to credit cards paid for by Dr. E.S..

71. Since the order suspending support was made in 2003 the father has hidden or misrepresented his income. He did not provide the annual financial disclosure ordered in February 2003. This was also ordered to be filed with the court, and he did not do that. And he did not notify the mother when he obtained employment.

72. In the motion to change, the father provided inadequate disclosure. He provided inadequate information regarding his income and no information regarding his wife's income. He provided inadequate information regarding his business income.

73. The mother filed material from various wage surveys, from different sources, to assist the court in imputing income to the father over the years, based on his education and certifications in sonography and as an x-ray technician. These are the income ranges the mother proposes for the father during those years:

	Ultrasound technician	Medical lab technicians	Echocardiographer	Ultrasound techs and sonographers
2000	$43,321 Canadian
2002		$42,000-$61,000 Canadian
2004			$52,490 U.S.
2005		$41,632 Canadian
2006		$57,160 U.S.		$40,000 Canadian
2014				$65,000-$75,000 Canadian
2015				$71,000-$72,000 U.S. / $75,000 Canadian

74. The father did not address these income amounts in evidence, did not provide his own estimates or income amounts and did not dispute them.

75. It is difficult to determine an appropriate amount of income to impute to the father. Part of the reason for this is his lack of disclosure. But a payor cannot fail to comply with the rules about disclosure and then benefit from his behaviour. The onus was on him to produce adequate disclosure about his income. He failed to do so. He has hidden his income and has misled the mother and the court about his income over the years. The court will draw an adverse inference regarding his failure to make disclosure and his income. The court will impute income to him for the years in question, based on the evidence that was available.

76. It is not believable that the father earned no income, or such low levels of income as he asserts, for the years in question. He is an educated accomplished man, married to a medical doctor. He has an obligation to be working at an appropriate job and level for his education, skills and experience. The court will impute income to him commensurate with those criteria (i.e., his education, his skills and his experience).

77. These are the suitable levels of income to be imputed to the father for these years (based on his education, skills, experience, and the income levels provided for his various job qualifications):

Year	Income Imputed (Canadian)
2003	$42,000
2004	$42,000
2005	$42,000
2006	$42,000
2007	$44,000
2008	$44,000
2009	$44,000
2010	$44,000
2011	$50,000
2012	$55,000
2013	$60,000
2014	$65,000
2015	$75,000
2016	$75,000

What is the Proper Start Date for Adjusting Child Support?

78. Retroactive child support (both the table amount and s. 7 expenses) must be considered in the framework of the principles set out by the Supreme Court of Canada in the D.B.S. decisions: D.B.S., supra, 2006 (S.C.C.).

79. The umbrella determination in the D.B.S. cases is this: courts have the jurisdiction to award retroactive child support, and, in appropriate cases they should do so.

80. These are the framework principles set out in the D.B.S. decisions:

• The obligation of support arises automatically upon birth: D.B.S., para. 36-37;

• Child support is the right of the child; D.B.S., para. 60;

• The term "retroactive" is misleading in the technical sense, as these "retroactive" awards do not hold parents to a legal standard that did not exist at the relevant time: D.B.S., para. 2;

• A retroactive child support order does not involve imposing an obligation on a payor parent that did not exist at the time for which support is being claimed: D.B.S., para. 68;

• The specific amounts of child support owed will vary based upon the income of the payor parent;

• As income levels increase or decrease so will the parents' contributions to the needs of the children, just as they would if the family had remained together;

• Under the general Guidelines regime, the underlying theory is that the support obligation itself should fluctuate with the payor parent's income;

• Under the general Guidelines regime, when a payor parent does not increase the amount of his support when his income increases, it is the child who loses: the child is the one who is entitled to a greater quantum of support in absolute terms: D.B.S., para. 43, 45, 47;

• The ultimate goal must be to ensure that children benefit from the support they are owed at the time when they are owed it. Any incentives for payor parents to be deficient in meeting their obligations should be eliminated: D.B.S., para. 4;

• It is clear that retroactive awards cannot simply be regarded as exceptional orders to be made in exceptional circumstances: D.B.S., para. 5;

• Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility: D.B.S., para. 5; and,

• Courts must be open to ordering retroactive support where fairness to children dictates it, but should also be mindful of the certainty that fairness to payor parents often demands. It is only after a detailed examination of the facts in a particular case that the appropriateness of a retroactive award can be evaluated: D.B.S., para. 6.

81. In the D.B.S. cases, the Supreme Court of Canada sets out a process to follow when considering and deciding issues of retroactivity:

82. What is the legal status of the support obligation?

    • a) court order;
    • b) agreement; or,
    • c) no order or agreement.

83. Are there any legal excuses/exemptions that apply (the factors to be considered)?

    • a) the child's age;
    • b) delay;
    • c) blameworthy conduct;
    • d) hardship to the child; or,
    • e) hardship to the payor.

84. What is the proper retroactive amount to be ordered?

    • a) commencement date; and,
    • b) amount to be ordered.

85. While the payor parent does not shoulder the burden of automatically adjusting payments, or automatically disclosing income increases, this does not mean that he will satisfy his child support obligation by doing nothing. If his income rises and the amount of child support paid does not, there will remain an unfulfilled obligation that could later merit enforcement by a court: D.B.S., para. 59. This means that a parent will not have fulfilled his obligation to his children if he does not increase child support payments when his income increases significantly.

86. The certainty offered by an order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support: D.B.S., para. 64.

87. Parents should not have the impression that child support orders are set in stone. Even where an order does not provide for automatic disclosure, variation or review, parents must understand that it is based upon a specific snapshot of circumstances which existed at the time the order was made. For this reason, there is always the possibility that the order may be varied when these underlying circumstances change: D.B.S., para. 64.

88. An increase in income that would alter the amount payable by a payor parent is also a material change in circumstances: D.B.S., para. 66.

89. In a situation where the payor parent is found to be deficient in his support obligation to his children, it will be open for a court to vary an existing order retroactively. The consequence will be that amounts that should have been paid earlier will become immediately enforceable: D.B.S., para. 74.

90. When applying the D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco v. Couto, para. 24; Corcios v. Burgos, supra, 2011 (Ont. Sup. Ct.).

91. The factors set out in D.B.S. are a guide. None of them are intended to be paramount or decisive. Ultimately, the Supreme Court stated courts should take a holistic approach to determining both quantum of retroactive support and terms of payment. Each case must be decided on the basis of its particular facts: Caterini v. Zaccari, 2010 ONSC 6473, para. 228.

What Is the Legal Status of the Support Obligation?

89. The support obligation in this motion to change is a court order. There was a consent temporary order for support for two children made on 22 August 2001. Then that order was suspended, on consent, in a final order on 11 February 2003. This is a motion to change those orders.

Are There any Legal Excuses/Exemptions that Apply (the Factors To Be Considered)?

The Age of the Child at the Time of the Claim: Eligibility and the Timing of the Claims for Retroactive Child Support

90. When the mother brought her claim (on 22 June 2015), for a retroactive adjustment to the table amount and for s. 7 expenses, the children were 27 and 19 years old. One of them (M.) was not then eligible for child support.

91. In D.B.S. the court found that a claim for retroactive support could not be made unless the child was eligible for support at the time of the application (D.B.S., para. 88 and 89).

92. The father did not raise this issue, although he was prompted to do so by the court at case conferences.

93. The order in question, the order both parents are asking to change, is an order of the Ontario Court of Justice under the Family Law Act.

94. In D.B.S., the court specifically referred to the wording of the Divorce Act (s. 15.1) in this analysis, finding that "the material time" for retroactive child support awards in the Act refers to the time of the application. This analysis has also has been applied in cases under the Family Law Act: Browning v. Browning, 2008 ONCJ 388; P.M.B. v. A.R.C., 2015 ONCJ 720, para. 78, 79.

95. This approach has been distinguished in cases involving motions to change support (rather than fresh applications for support). Specifically the approach has been distinguished in motions to change retroactively brought under the Divorce Act: Simone v. Herres, 2011 ONSC 1788; George v. Gayed, 2014 ONSC 5360; Lemay v. Longpré, 2014 ONCS 5107; Buckingham v. Buckingham, 2013 ABQB 155; and in those brought under the Family Law Act: Mondino v. Mondino, supra, 2013 (Ont. Sup. Ct.); Meyer v. Content, supra, 2014 (Ont. Sup. Ct.); Catena v. Catena, 2015 ONSC 3186; P.M.B. v. A.R.C., supra, 2015 (Ont. Ct.), para. 81-88.

96. The approach was also distinguished in Catena, supra, 2015 (Ont. Sup. Ct.), para. 22, on the basis of the difference between a case brought under the Divorce Act and one brought under the Family Law Act.

97. In short, the case law has created exceptions to the D.B.S. analysis 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; and,

    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.

P.M.B. v. A.R.C., supra, 2015 (Ont. Ct.), para 91.

98. This case is a motion to change an existing support order and an established support obligation under the Family Law Act. It is not a fresh application for support. The mother brought her motion to change on the basis that the father had not paid or had underpaid support for many years, and had never contributed to eligible s. 7 expenses. The father brought forward his request on the basis that one of the children (C.) was no longer eligible for support. The mother is entitled to bring this motion to change, even if the children were not eligible for support at the time she started her claim, just as the father is entitled to bring his motion to change, even if the child was not eligible for support at the time he started his claim. As well, in this case, there has been blameworthy conduct on the part of the father that has contributed to the mother's failure to bring the retroactive support claim within the requisite time. The court has jurisdiction to hear these requests.

Was there Delay by the Recipient?

99. The mother waited a considerable period before returning to court to seek a reinstatement of the child support order, an increase in the table amount of support and a contribution to s. 7 expenses.

100. Delay in seeking an increase in child support is a factor in determining whether a retroactive award is justified: D.B.S., para. 100, 101.

101. The court shall consider whether there is a reasonable excuse for the delay in applying for relief. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears: Gray v. Rizzi, 2016 ONCA 152, para. 60.

102. The mother says that she has repeatedly asked the father to resume paying support and to contribute to the children's s. 7 expenses since 2003, when the support order was suspended. She says he told her that he was not working or that he could not afford to contribute.

103. The order in 2003 suspending support required the father to serve and file annual financial disclosure and to notify the mother when he obtained employment. She says that she has requested many times that he produce his income tax returns, and proof of his income. He has not done so.

104. The mother says that the father avoided discussing child support or his income with her. She says that he did not return her phone messages, and that in 2015 he blocked her phone calls and text messages.

105. The mother did not know the father's work address, or home address, until the court case was started.

106. In the summer of 2014 M. told the father what her tuition and books would cost for the program at W[…] University (a double degree 5 year program in Global Studies and Communications). On 23 November 2014, the mother sent the father a formal Form 20 Request for Information asking for specific financial disclosure. He did not respond.

The Father's History of Abusing the Mother and the Children

107. There was detailed evidence from the mother and from both adult daughters about the father's long history of abusing the mother and the children, both during the relationship and after the separation. He abused the mother and both children emotionally and mentally. In addition, he physically abused the mother and C., and he sexually abused C..

108. All three women gave evidence about their life with the father when the family was together, their life with him after separation, and their relationships with him, all over a period of many years. The adult children were 28 and 20 years old when their affidavits were sworn. The evidence of the three women was detailed, very specific, and disturbing.

109. The mother's evidence was that when the family was all together, the father was manipulative, very controlling and violent. He used physical intimidation and verbal threats to control them. He used to slap her face. She says that he often hit C. with a belt on bare skin, leaving red marks for days, starting when C. was 7 years old. When the mother tried to intervene, he did the same to her. C. and M. would hide under the desk when he came home out of fear. He posted a photo of himself on the internet holding a handgun.

110. The mother tried to avoid conflict with the father in order to protect the children. As well, they were financially dependent on him. She did not have money to leave him, she spoke little English before immigrating to Ontario in 1999, and she did not understand the culture here for some time.

111. The mother's evidence was that the father repeatedly sexually abused C., starting when she was 8 years old. C. was significantly emotionally damaged by the father.

112. The evidence of the adult daughters was concerning, moving and chilling. C.'s evidence (she was 28 years old when the affidavit was sworn) was that she lived with the father from 1995 to 2000, from the ages of about 7 to 12 years old. She detailed repeated physical, sexual and emotional abuse by the father. He started physically abusing her by hitting her from the age of 7 years. He hit her with belt on her bare skin. He once threw her out of the apartment and told her she would have to live on the streets. He also hit her with his hand on her bare skin. When she was about 8 years old, he made her walk around the apartment naked. He walked around the apartment naked. He kept pornography openly around the house and on his computer. He encouraged her to play a pornographic game on the computer in front of his friends. When she was 9 years old, when he was drunk, he sat her at the wheel of car and made her drive the car. Her evidence was that she was terrified. She says that she still gets anxiety when she sits at the wheel of a car. The psychological stress prevented her from learning to drive for many years.

113. M.'s evidence (she was 20 years old when her affidavit was sworn) detailed repeated physical violence by the father in her presence, and emotional abuse. After the separation (she was about 4 years old then) she wanted no contact with him. She was afraid of him. From about 2003 to 2006, she begged the mother not to send her to him on alternate weekends, and in the summers. She saw him beat her mother with a belt. When she was 8 years old, he walked around naked in front of her, her step-sister V. (who was then about 12 years old) and Dr. E.S.. He punished M. by locking her in a room for hours, without a bathroom. He often yelled at her, yelled at V., and yelled at Dr. E.S.. He had a very quick temper and a loud mouth. He slammed his fists into furniture, and into walls, with the intention of scaring and controlling others. He owned a rifle and a handgun, which he kept at his residence. In 2012 she saw him physically abuse Dr. E.S. in Germany, in a public place. She was afraid that he might kill her (M.) at that time. She terminated her relationship with him in 2015 (when she was about 19 years old).

114. The father's response to this detailed evidence was surprisingly Spartan and vague. He said merely that the information about abuse is "incorrect". He did not say the evidence was untrue. He did not provide his own explanation of these events. He did not deny the physical abuse. He did not deny the detailed descriptions by C.. He did not specifically even mention the sexual abuse, and did not deny the sexual abuse.

115. The court has no difficulty accepting the evidence of the mother and the two children about the father's abusive and controlling behaviour.

116. The mother did not have the father charged with assault or tell the court about the assaults during the court case in 2000 to 2003 because she was afraid for the safety of C. and M., and for her own safety. He has intimidated her by telling her he would win custody of both children.

117. The mother says that she did not want to force the issue of child support payments due to the father's threats and violent behaviour. Both children were showing no interest in visiting him. Due to the history of his violent behaviour and assaults of the mother and the children, she was afraid that he would physically abuse M. in retaliation if she went back to court while M. was still having access to him. So she waited until after M. turned 18 (in 2014) to start the court case process.

118. The father says that the post-separation relationship with the mother was amicable. He says that they never had any conflicts until November 2014 (when she made a formal request for information). That is simply not believable in these circumstances.

119. The mother's evidence is that she asked the father to contribute and that he refused, or avoided these issues. The court accepts her version of these events. It is understandable why she was unwilling to return the matter to court, and why she waited as long as she did to do so. Her version of events is consistent with the other evidence. Her delay was entirely justified, under these extreme circumstances.

Blameworthy Conduct: Legal Considerations

120. The payor parent's interest in certainty is least compelling where he engaged in blameworthy conduct: D.B.S., para. 105.

121. Courts should take an expansive view of what constitutes blameworthy conduct in this context: George v. Gayed, supra, 2014 (Ont. Sup. Ct.), para. 51.

122. Blameworthy conduct is anything that privileges the payor parent's own interests over his children's right to an appropriate amount of support: D.B.S., para. 106.

123. A payor parent should not be permitted to profit from his wrongdoing: D.B.S., para. 125.

124. A payor parent cannot hide his income increases from the recipient parent in the hopes of avoiding larger child support payments: D.B.S., para. 106.

125. No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his obligations, he might still be acting in a blameworthy manner if he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his support obligation to his children should not be allowed to profit from such conduct: D.B.S., para. 107.

126. Whether a payor parent is engaging in blameworthy conduct is a subjective question: D.B.S., para. 108.

127. Hardship for the payor parent is much less of a concern where it is the product of his own blameworthy conduct: George v. Gayed, supra, 2014 (Ont. Sup. Ct.), para. 53.

128. Another conduct issue addressed by the cases is the failure to pay the support which was originally ordered: Mondino v. Mondino, supra, 2013 (Ont. Sup. Ct.), para. 102.

129. 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: Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 54.

This Father's Blameworthy Conduct

130. The court order made 11 February 2003 suspending child support also required the father to make annual financial disclosure of his income tax returns and notices of assessment. He was required to both serve them on the mother and to file them with the court. He was also required to notify her within seven days when he obtained employment. He did not do any of this.

131. The mother's evidence is that she asked the father to make this disclosure. She also asked him if he was working, and what he was working at. He was evasive and difficult about this. He did not provide her with his income tax returns.

132. The mother gave evidence about the father's deliberate tactics to avoid paying support. He misrepresented his income to her. He was either unemployed or underemployed and was hiding his income. Finally on 23 November 2014, she served him with a Request for Information asking for specific financial disclosure. He did not respond.

133. The father did not provide proper disclosure in this motion to change (started on 22 June 2015). It is very difficult to determine his income or even when and where he was working based on the information he provided. That, in fact, may have been his intention.

134. The father did not ever, in the motion to change, provide information about his wife's income or employment. The mother served him with a request for Information asking for this information on 22 June 2015. And, he is required to provide information about Dr. E.S.'s income and employment under the Family Law Act, The Family Law Rules, and the Child Support Guidelines.

135. The father has been employed from time-to-time since 2003, when the order suspending support was made, and he did not resume paying support until 2009. From 2009 to 2014 the mother received sporadic and irregular payments from him (13 payments in total, over six years) for a total of $5,388.29. In some years (2010 and 2014) there was only one payment. In some years (2013) there were no payments.

136. Even when the father began to pay support (in October 2015), after the court case started (on 22 June 2015), he paid an arbitrary amount chosen by him ($144.06 U.S. per month). He continued to pay that amount, even though there was a temporary court order made 4 February 2016 reverting to the original support order, for $270 per month from 1 February 2016.

137. The father had access to the children over the years from 2003 until at least 2015. He knew that the children were living in reduced circumstances, even in poverty. He know that C. could not afford to continue her education at Y[…] University. Although he told the mother several times that he would pay one-half of the costs of M.'s post-secondary education, he did not. In fact, he has contributed nothing to those costs.

138. The father engaged in blameworthy conduct right from the time that the order was made suspending support in February 2003. He continued to engage in blameworthy conduct throughout the period from 2003 to the present. He was violent and abusive to the mother and the children. He did not make annual financial disclosure, as ordered. He did not notify her when he obtained work, as ordered. He did not make proper disclosure in the motion to change. He did not disclose the income or job of Dr. E.S.. There were many years in which he paid either no support or only very modest support, at the same time that he was seeing the children, and was living a prosperous and comfortable life in the U.S., married to a doctor, living in a large house with a swimming pool, and vacationing extensively and frequently.

139. The lack of disclosure and the level of the father's non-disclosure, in a situation like this, are particularly egregious. He cannot be allowed to benefit from this intentional act of not making the disclosure he is obliged to do by court order, and by law.

Hardship in the Circumstances of the Children

140. Courts should consider the present circumstances of the child -- as well as the past circumstances of the child -- in deciding whether a retroactive award is justified: D.B.S., para. 110.

141. The mother and both the daughters gave evidence about the life and the standard of living they experienced since 2003 when the child support order was suspended. The mother says that her household with the two children has subsisted on a very meagre income. She says that they have barely been able to provide for their basic needs, and that they have barely been able to make ends meet.

142. The mother's evidence was that it was very difficult for her to meet the children's needs without child support. They were on welfare and they went to food banks. The children have done without because the father did not provide support. They wore second hand clothes, and she bought discounted food. C. worked during her post-secondary education to pay for clothing, transportation, glasses and medicine. The mother went without so she could divert money to the children's needs. She worked full-time, and worked overtime when it was available. They had no car until 2013. She borrowed money many times from friends to buy food and pay for bus fare. Many time friends gave them gifts of clothes and food. She could not accumulate assets, except for an RESP for M.. The mother did not take vacations. She could not take time off work when the children were sick.

143. The children also gave evidence about the life they had in those years (after 2003) and the consequences for the mother and the children from the father not paying support for many years. This evidence was detailed and specific.

144. C. gave evidence about the standard of living the children had in those years. She said there were things they could not afford (e.g., food, school trips). They wore second-hand clothes and hand-me-down clothes, and they were on welfare. The mother was unable to save for an RESP for C., and she grew up knowing she would have to pay for her own education. When C. went to S[…], she worked during the day and took courses at night (4 courses, a fulltime case load). The mother helped her with the cost of school, paying $2,000 towards S[…] courses, and paid her food and housing. C. paid for everything else (transportation, clothing, glasses, medicine), and also contributed to food occasionally. The father did not contribute to her post-secondary expenses at any time. She completed a business marketing diploma. Due to lack of money, she was unable to complete university, which is what she wanted. She started at Y[…] University and did 1½ years of a 4 year degree in business marketing, but could not continue at Y[…], as the father did not contribute financially and she could not work sufficient hours. This was stressful and she became depressed.

145. M. also gave evidence about the standard of living the children had in those years. They lived in a one bedroom apartment, in which the two children slept in the bed-room and the mother in the living room. The mother worked constantly. C. had to babysit M. every day for hours, and picked M. up from school and daycare. She felt poor growing up, and wore second hand and hand me down clothes. She could not do extracurricular activities as there was no money for this. She could not take driving lessons, and there was no money for insurance for her. There was no car for the family until 2013.

146. The court accepts the evidence of the mother and the two children on this issue.

Hardship to the Payor

147. The father did not plead hardship and did not argue hardship.

148. While hardship is certainly one of the factors to be considered pursuant to D.B.S., the weight to be given to this factor is greatly diminished by blameworthy conduct on the part of the payor parent: Caterini v. Zaccaria, supra, 2010 (Ont. Sup. Ct.), para. 226.

149. Any hardship can be addressed by a repayment schedule.

What is the Proper Retroactive Amount to Be Ordered? And from What Start Date?

Start Date of the Order

150. The court in D.B.S. identified four choices for the date to which the award should be retroactive:

a) the date when an application was made to a court;

b) the date when formal notice was given to the payor parent;

c) the date when effective notice was given to the payor parent; or,

d) the date when the amount of child support should have increased.

151. The court adopted the date of effective notice as a general rule for the commencement date of retroactive support awards: D.B.S., para. 118.

152. "Effective notice" means any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his interest in certainty becomes less compelling: D.B.S., para. 121.

153. Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changed materially (that is, the date when the amount of child support should have increased) will be the presumptive start date of the award: D.B.S., para. 134.

154. The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that he reasonably believed his child's support entitlement was being met: D.B.S., para. 124.

155. The presence of blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his informational advantage to justify his deficient child support payments: D.B.S., para. 124.

156. The father's conduct regarding his support obligation to his children, over a long period of time, is egregious. He knew he had an obligation to support his children. He did not disclose his income or his employment. He did not contribute to any s. 7 expenses, even when asked to do so, and even while acknowledging that he had an obligation to do so and that he would do so. He had the means to pay an increased amount of support and to contribute to the s. 7 expenses and he refused to do so. He benefitted financially over a period of many years from this conduct. He knew what he was doing. This is blameworthy conduct.

The Fairness Umbrella Regarding Retroactive Child Support

157. In the D.B.S. cases, the Supreme Court of Canada inserted a new test in child support cases, that is, an umbrella test of "fairness", into this analysis. The court repeatedly refers to the "balance between certainty and flexibility" in this area of the law, describing it as fairness to children and certainty for the payor.

158. The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for any delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail: D.B.S., para. 133.

159. These determinations involve a balancing of interests: the payor's right to know with some certainty what his obligations are, and the child's right to be supported at the appropriate level. It is only after a detailed examination of the facts in a particular case that the appropriateness of a retroactive award can be evaluated. The payor has the advantage, of course, as the payor is often the only one in the equation (payor, recipient, and child) in possession of the information about his income and what the appropriate amount of support should be at any given time. Courts must be open to ordering retroactive support where fairness to children dictates it: D.B.S., para. 5, 6.

160. This requires the judge to examine all the factors and weigh those factors, keeping in mind the need to balance these interests. No matter what order is made, one parent will be disadvantaged.

161. The question of retroactive child support awards is a challenging one because it only arises when at least one parent has paid insufficient attention to the payments the child was owed. Courts must strive to resolve such situations in the fairest way possible, with utmost sensitivity to the situation at hand. But there is unfortunately little that can be done to remedy the fact that the child in question did not receive the support payments he was due at the time when he was entitled to them. D.B.S., supra, para. 135.

162. A delinquent payor cannot use the principle of predictability as a shield against paying the full amount of support to which his child is entitled: Gray v. Rizzi, supra, 2016 (Ont. C.A.), para. 37.

163. The Supreme Court of Canada cannot have meant that the court should reward a father who fails to make payments and fails to disclose his employment and his income information by refusing to retroactively vary the order. Such an interpretation would encourage payors to not comply with the court order, as there would be no adverse consequences for them.

164. On an overall fairness analysis of all the circumstances in this case, it is fair, just and appropriate that there be an order for a retroactive adjustment of child support. The appropriate start dates are dealt with below.

The Mother's Claims for Retroactive Support

165. The mother's claims for a retroactive adjustment of the table amount and the s. 7 expenses are complicated and need to be addressed separately.

The Mother's Claims for Retroactive Adjustments of the Table Amount and the Children's Eligibilities

166. C. (now 28 years old) completed a business marketing diploma at S[…], and went on to Y[…] University, where she completed 1½ years of a degree program in business marketing. The mother acknowledges that support for C. should end on 31 December 2012.

167. M. (20 years old) is a student at W[…] University.

C.'s Eligibility for Support

168. The father attempted to raise the issue of his liability to support C., and to argue she is not eligible for support from him at all, as he is not her biological father. In 2001 there was a consent order by Nevins, J. for child support for both children from 1 September 2001. He consented to pay support for both children. The issue of his liability for C.'s support was not raised then. The support order was not appealed. His liability for C.'s support was determined by the court in 2001. He cannot raise this issue now.

169. The order suspending support was made on 11 February 2003. The father obtained his first certification as a medical technician in 2003. He should have worked from at least 2004 in one of the fields he was trained in. The child support should be adjusted from 2004. He has been underemployed or intentionally unemployed for many years.

170. This is the support that should be paid (that is, the table amount) for the children, in these time periods (based on the income imputed to the father, as determined above):

Year	Income Imputed (Canadian)	Number of Children	Monthly Table Amount
2004	$42,000	2	$596
2005	$42,000	2	$596
2006	$42,000	2	$596 to 30 April 2006 $636 from 1 May 2006
2007	$44,000	2	$665
2008	$44,000	2	$665
2009	$44,000	2	$665
2010	$44,000	2	$665
2011	$50,000	2	$753
2012	$55,000	2	$817
2013	$60,000	1	$546
2014	$65,000	1	$594
2015	$75,000	1	$682
2016	$75,000	1	$682

171. The table amount adjustments for those years should then be the following:

a) from 1 January 2004 on imputed income of $42,000 for 2 children $596 per month;

b) from 1 May 2006 on imputed income of $42,000 for 2 children $636 per month;

c) from 1 January 2007 on imputed income of $44,000 for 2 children $665 per month;

d) from 1 January 2011 on imputed income of $50,000 for 2 children $753 per month;

e) from 1 January 2012 on imputed income of $55,000 for 2 children $817 per month;

f) from 1 January 2013 on imputed income of $60,000 for 1 child $546 per month;

g) from 1 January 2014 on imputed income of $65,000 for 1 child $594 per month;

h) from 1 January 2015 on imputed income of $75,000 for 1 child $682 per month.

Retroactive Child Support and s. 7 Expenses

172. The principles set out in the D.B.S. cases regarding retroactive child support apply to the table amount and to s. 7 expenses: Selig v. Smith, 2008 NSCA 54, para. 25, 26. The court in the D.B.S. cases makes no distinction between the table amount of child support and s. 7 expenses for child support.

The s. 7 Special Expenses and Child Support

173. The mother's claim for special expenses and retroactive special expenses is brought under s. 7 of the Child Support Guidelines, Ontario Reg. 391/97:

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

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

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

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

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

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities. O. Reg. 391/97, s. 7 (1) ; O. Reg. 446/01, s. 2.

Definition, "extraordinary expenses"

(1.1) For the purposes of clauses (1) (d) and (f),

"extraordinary expenses" means

(g) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

(h) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child,

(iv) the overall cost of the programs and activities, and

(v) any other similar factors that the court considers relevant. O. Reg. 102/06, s. 1.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. O. Reg. 391/97, s. 7 (2) .

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense. O. Reg. 159/07, s. 2.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. O. Reg. 159/07, s. 2.

174. The list of special and extraordinary expenses under s. 7(1)(a) to (f) is exhaustive; if a claim doesn't fall within any of the listed categories, it must be dismissed: Kilrea v. Kilrea, para. 13.

175. All special expenses must meet the tests of necessity and reasonableness set out in s. 7(1) of the Guidelines. The onus falls on the applicant who seeks special or extraordinary expenses under s. 7 of the Guidelines to prove that the claimed expenses fall within one of the categories, and that the expenses are necessary in relation to the child's best interests, and reasonable having regard to the parental financial circumstances: Park v. Thompson.

176. In Titova v. Titov, 2012 ONCA 15666, the Ontario Court of Appeal set out the following steps for determining whether to make an award for section 7 special or extraordinary expenses:

a) Calculate each party's income for child support purposes;

b) Determine whether the expense in question falls within one of the enumerated categories set out in section 7 of the Guidelines;

c) Determine whether the expense is necessary in relation to the child's best interests and is reasonable in relation to the means of the spouses and to those of the child and to the spending pattern prior to separation;

d) If the expense falls under section 7(1)(d) or (f), determine if the expense meets the definition of "extraordinary;"

e) Consider what amount, if any, the child should reasonably contribute to the payment of the expense; and

f) Finally, apply any tax deductions or credits to reach the net amount of the expense.

Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 69

The Mother's Claims for S. 7 Expenses

177. The mother has claimed reimbursement for these s. 7 expenses for the children:

a) Tuition and school fees for post-secondary;

b) Residence;

c) Textbooks;

d) Transportation;

e) Computer;

f) Camp;

g) Daycare; and,

h) Medical expenses (chiropractor, glasses, contacts, orthotics).

178. There were no claims made for any other s. 7 expenses (e.g., activities).

179. The mother's evidence was that the father was given information about C.'s and M.'s university plans and that he raised no objections.

180. The father did not question any of the categories claimed by the mother as s. 7 expenses, nor did he dispute the amounts claimed. He basically was not willing to pay or says that he was not obligated to pay these expenses, other than to contribute one-half of M.'s post-secondary costs.

181. The mother provided evidence regarding the section 7 expenses for the children (the gross and net costs of the section 7 expenses claimed by the mother for C. and M.) and the children's incomes for those years. This information is set out in the charts attached (in the Appendix to the Reasons for Decision).

C.

182. C. was a post-secondary student from 1 January 2008 to 31 December 2012. She was a student at S[…] College from January 2008 to August 2010, in a two year Business Marketing diploma program. From May 2010 to December 2012 she was a student full time at Y[…] University in a program working towards a Bachelor of Administrative Studies degree. She had to drop out of Y[…] when she found she could no longer pay for school and provide for her living expenses.

183. The father never contributed to C.'s special expenses. From 2008 to 2012 C. worked throughout the school year to help with school expenses. Her evidence was that this negatively affected her marks, and left her with student loans of $9,464.

184. C. is self-supporting, since 2013, and is now married. The mother acknowledges that support for C. should end on 31 December 2012.

M.

185. M. is a student at W[…] University. The father acknowledges his responsibility to pay for M.'s post-secondary education. At various times in 2012 he told the mother he would contribute equally to M.'s university costs. He did not do so. He told the mother in February 2014 that he would assist in paying M.'s tuition. He did not do so. In at least three different places in his evidence–in-chief (para. 40, 47, and 68 in his affidavit), he acknowledges that he is responsible for one-half of M.'s post-secondary expenses. In fact, he has paid nothing towards M.'s post-secondary education costs.

Legal Issues Regarding the Mother's s. 7 Claims

186. These are the issues to be determined regarding the s. 7 expenses claimed by the mother:

a) Is the mother entitled to claim s. 7 expenses on a retroactive basis, and if so, starting when?

b) Do all the expenses claimed by her properly qualify as s. 7 expenses?

c) Is the mother entitled to re-imbursement for the full amounts she has claimed?

d) What is the father's proper proportionate share of those amounts? and,

e) What is the obligation of the children to contribute to the s. 7 expenses claimed?

The Question of Entitlement: Do All the Expenses Claimed Properly Qualify as s. 7 Expenses?

187. An order for contribution to special and extraordinary expenses under s. 7 of the Guidelines is discretionary as to both entitlement and amount: Julien Payne and Marilyn Payne, Child Support Guidelines in Canada, 2009, Irwin Law (Toronto), p. 227, 231.

188. Therefore the court must first determine the issue of entitlement for a particular expense. A review of the cases reveals that judges across Canada have wildly differing views of what constitutes reasonable and necessary extracurricular expenses - even in the case of the same type of expense and with parents with incomes in the same range. Sometimes they are allowed and sometimes they are not: Smola v. Roger, para. 11.

189. The mother did not categorize the expenses claimed according to the s. 7 list in either her pleadings or in her argument. The father is offering only to contribute one-half the cost of M.'s post-secondary expenses. These are the entitlement findings regarding these various expenses:

a) **Post-secondary school:** The cost of post-secondary education is being claimed under s. 7(1)(e)of the Child Support Guidelines (all sections referred to in this section are from the Child Support Guidelines). The expenses for tuition, school fees, residence, textbooks, computer, transportation and living expenses all qualify as proper s. 7 expenses. The children's living expenses and their post-secondary education expenses are all reasonable. The father had contact with the children while they were at school, and knew they were attending post-secondary education.

Section 7(3) provides that the court shall take into account any income tax deductions available regarding the expense in determining the amount of the s. 7 expense that is to be shared. The mother provided evidence regarding the net cost of the s. 7 expenses (using the availability of deductions to the children for some of these expenses).

The parents shall share the amount of this expense, which is $67,673.76 for both children. For C., the net cost (net of grants, student loans and available deductions) for 2008 to 2012 is $21,697.21. For M., the net cost (net of grants, student loans and available deductions) for 2014 to August 2016 is $45,976.55.

There will be consideration below about the obligation of the children (under s. 7(2)) to contribute to these expenses;

b) **Medical expenses:** The medical expenses are health related expenses being claimed under s. 7(1)(c). These expenses are for glasses, contacts, eye examinations, chiropractor and orthotics. The parents shall share the amount of this expense, which is $2,770 for both children. For C. this expense is $1,407 for 2009 and 2012. For M. this expense is $1,363 for 2009 to 2015; and,

c) **Daycare and camp:** The daycare and camp expense is claimed under s. 7(a). It is a proper s. 7 expense. The parents shall share the amount of this expense, which is $1,956 for M. for 2005 to 2007.

The Question of Amount: Is the Mother Entitled to Re-imbursement for the Full Amounts she has Claimed?

190. The entitlement test has been met for the s. 7 expenses for post-secondary costs, daycare, camp, and medical expenses. The amounts claimed will need to meet the necessary and reasonable test under s. 7(1). The court must take into account the necessity of the expense in relation to the child's best interests, and the reasonableness of the expense in relation to the means of the parents, and those of the child, and in relation to the spending pattern of the parents in respect of the child during cohabitation.

191. Claims for s. 7 expenses must be supported by relevant evidence. But the court has the discretion to make an order based on estimates (s. 7(1)). The court also has discretion to order a contribution for all or any portion of a proper s. 7 expense (s. 7(1)).

192. The mother provided a detailed chart of the s. 7 expenses incurred and proof of those expenses. Where she could not provide proof of the expenses, she did not claim them. The father did not dispute that these expenses were incurred or that they were paid. Basically, he simply said he should not have to contribute towards any of the expenses other than M.'s post-secondary costs.

193. To be allowed as s. 7 expenses, the amounts claimed must be necessary in relation to the child's best interests, and reasonable in relation to the means of the parents. These are not expenses that the mother could ordinarily afford on her own, without the contribution of the father. These expenses are necessary for these children to meet their potential. These categories (post-secondary education, medical costs, daycare and camp) are essential elements of a child's well-being and advancement. They are both necessary in relation to the children's best interests, and reasonable in relation to the means of the parents (particularly in relation to the father's means).

194. The father's conduct in this case is unacceptable. He has abandoned his children and burdened the mother with the responsibility of providing for their support and their post-secondary education. He should not be able to rely on his own misconduct in order to defeat the mother's claims: George v. Gayed, supra, 2014 (Ont. Sup. Ct.), para. 94.

195. If the court disallows the mother's claim for these s. 7 expenses, the only beneficiary is the father. That would not be fair, appropriate or in the interests of these children. The mother and the children managed for many years on her modest income. The father should not now be rewarded for his many years of blameworthy conduct regarding the non-payment of child support by being excused from paying the amounts of child support that should have been paid as they accrued and as the children incurred these s. 7 expenses.

196. These are the findings regarding the proper amount the mother can claim for these expenses (that is, the determination of the question of amount):

a) **Costs of post-secondary school:** The parents shall share the amount of this expense, which is $67,673.76 for both children. For C., the net cost (net of grants, student loans and available deductions) for 2008 to 2012 is $21,697.21. For M., the net cost (net of grants, student loans and available deductions) for 2014 to August 2016 is $45,976.55;

b) **Medical expenses:** The parents shall share the amount of this expense, which is $2,770 for both children. For C. this expense is $1,407 for 2009 and 2012. For M. this expense is $1,363 for 2009 to 2015; and,

c) **Daycare and camp:** The parents shall share the amount of this expense which is $1,956 for M. for 2005 to 2007.

197. The mother may claim a contribution and the father shall contribute to these expenses for both children under s. 7:

Category	Amount
Post-secondary	$67,673.76
Medical expenses	$2,770
Daycare and camp	$1,956
Total	$72,399.76

What is the Father's Proper Proportionate Share of those Amounts?

198. The mother asks that the father contribute to the s. 7 expenses in proportion to his income for the relevant years. She says that his proportionate share of these expenses (post-secondary education, medical expenses, daycare and camp) over the years up to 30 April 2016 totals $45,655.46. She provided a chart setting out the calculations for these expenses and their sharing. It appears that the range of the proportionate share she is claiming is from 62%:38% (father: mother) to 79%:21% (father: mother). In other words, she claims that the father should pay between 62% and 79% of the s. 7 expenses (based on the imputed incomes for him that she proposes).

199. The mother's income for this period is as follows:

Year	Line 150 Income	Earnings and Benefits	Net Business Income
2004	$24,620	$25,472	($852)
2005	Unknown	$23,963	Unknown
2006	$20,556	Unknown	Unknown
2007	$21,272	$26,962	($5,555)
2008	$19,661	$26,165	($5,992)
2009	$22,871	$30,425	($6,574)
2010	$10,798	$26,578	($15,780)
2011	$19,609	$29,042	($8,768)
2012	$16,231	$24,875	($7,910)
2013	$24,337	$26,059	($1,100)
2014	$16,052	$25,070	($8,291)

200. The father did not object to the evidence provided regarding the mother's income and did not challenge it. The court accepts this evidence.

201. The total of the allowable s. 7 expenses to be shared by the parents is $72,399.76. Based on their respective incomes over the years, the father's proportionate contribution to these expenses would be significantly more than 50%, as he has been imputed at income levels that are significantly higher than the mother's income.

202. However, on an overall fairness analysis of all the circumstances in this case, it is fair, just and appropriate that the father contribute 50% of the special expenses claimed. There are several reasons for this. All of these claims relate to post-secondary education, medical expenses, daycare and camp. These are essential expenses for the children and are necessary for their success. None of the expenses claimed in this case relate to activities by the children (i.e., sports, music lessons, extra-curricular activities, etc.), expenses that are discretionary and sometimes considered as extras. The father was having contact with the children during these years. He knew that the children were in post-secondary education. The income amounts for the father over this period were imputed amounts. And finally, these expenses are being claimed, calculated, awarded and will be paid on a retroactive basis.

203. The parents shall share these s. 7 expenses equally. The father shall pay to the mother $36,199.88 as his contribution to the s. 7 expenses of the children for post-secondary education, medical expenses, daycare and camp up to 31 August 2016.

The Children's Obligations to Contribute to Their Own s. 7 Expenses

204. Section 7(2) requires the court to determine the amount of the s. 7 expense that is to be shared by the parents and to take into account and to deduct the contribution, if any, from the child.

205. The table support for adult children may be adjusted, in part at least, by funds available to the children for their education, and an adult child has an obligation to reasonably contribute to his or her post-secondary educational expenses: Lewi v. Lewi, para. 42 and 47; Mondino v. Mondino, supra, 2013 (Ont. Sup. Ct.), para. 63.

206. When the issue of contributions to post-secondary education costs for an adult child is before a court, the court has a broad discretion to consider the appropriate contribution, if any, of the child and of each parent to post-secondary education costs, after taking into consideration the means of the child and of each parent and any other relevant circumstance. A further factor relevant in such decisions is the reasonableness of the quantum of the expenses, taking into account the child's and the parents' means and any intention that the family may have formed on this issue prior to separation. There is no "formula" to establish the proper contribution from the child, if any contribution is required: Lewi v. Lewi, supra, 2006 (Ont. C.A.); Lacey v. Lacey, 2013 ONCJ 387, para. 60; Mondino v. Mondino, supra, 2013 (Ont. Sup. Ct.), para. 65.

207. With respect to the contributions expected from the child for post-secondary education expenses, the Court of Appeal set out the following considerations that should be kept in mind in carrying out the analysis of this issue:

a) As a general rule, there will be an expectation that a child with means will contribute something from those means towards their post-secondary education expenses;

b) There is no standard formula for determining the appropriate amount of the child's contribution, and this determination will depend on the unique circumstances of every case;

c) The determination of the contribution that a child should make to post-secondary education expenses should take into consideration both the child's income and capital assets. However, there is no requirement that the child contribute all of their income and/or capital assets towards these expenses. The extent of the child's contribution from both their income and capital is largely a matter of discretion for the trial judge, and will depend on the facts of each case;

d) The court emphasized the need to avoid creating disincentives for children to earn as much as possible to help pay their post-secondary education expenses. For instance, a general order that the child contribute a certain percentage of their earnings each year could create such a disincentive. It may be appropriate depending on the facts of the case to simply set an amount that the child is expected to contribute and to leave it to the child to earn as much as they can during the summers or throughout the school year, particularly where the child has assets from which they can draw for their financial needs; and,

e) If a child chooses to enrol in an educational program away from home at much greater cost, they should be expected to contribute a commensurately greater amount to their post-secondary education costs.

Lewi v. Lewi, supra, 2006 (Ont. C.A.); Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 73.

208. In cases involving post-secondary education costs, the court must determine the appropriate contributions of the child and each of the parents to the expenses. The extent to which a child will be expected to contribute to their post-secondary education costs depends on the particular facts and dynamics of each case. This duty to contribute does not necessarily require that the child devote their entire earnings to their educational expenses. If possible, children should be allowed to enjoy some of the fruits of their labour: Mickle v. Mickle, 2008 CarswellOnt 193 (C.A.); Wesemann v. Wesemann; Darlington v. Darlington; Roth v. Roth, 2010 CarswellOnt 2918 (S.C.J.).

209. Similarly, while there is tendency by the courts to support children with respect to their choice of a post-secondary education program, the child may be called upon to make a greater contribution to their education costs if various options are available and their choice comes with a higher price tag than other possibilities. Post-secondary education is a privilege, not a right. The law should create incentives for decision-making regarding appropriate educational programming that remains grounded in the reality of the family's financial means. Wesemann v. Wesemann, supra, 1999 (B.C.S.C.); Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 78.

210. A student loan may constitute a "contribution from the child" to post-secondary education expenses, within the meaning of section 7(2) of the Child Support Guidelines. It would be a mistake, however, to assume that a student loan will always be taken into account to reduce or eliminate the liability that would otherwise be imposed on the parents under section 7 of the guidelines. The issue really turns on the reasonableness of taking account of any such loans in light of the case: Coghill v. Coghill, para. 44.

211. Grants, scholarships and bursaries are treated on a different footing in so far as they involve a net transfer of resources to the child without any obligation of repayment. It has thus been held that a student loan is not a "benefit" within the meaning of section 7(3) of the child support guidelines that must be automatically taken into account in determining the amount to be ordered in respect of expenses sought under section 7 of the guidelines . . . nor should the availability of student loans automatically require the child to obtain such loans. Student loans are not to be equated with bursaries, grants, or scholarships. A student loan delays the payment of expenses, rather than defraying them [Julien D. Payne: Child Support in Canada]: Coghill v. Coghill, supra, 2006 (Ont. Sup. Ct.), para. 44.

212. Grants and bursaries, which do not need to be repaid, can be viewed as analogous to a child's income or savings. The court has discretion to determine what contribution, if any, it is reasonable to expect of the child in the particular circumstances.

213. Most courts are reluctant to allow the payor parent to avoid child support obligations by requiring that the child rely on student loans, since student loans are just costs that must be repaid when the child finishes school. While student loans are often available to serve as temporary assistance for those in financial need, they simply delay the expense rather than defraying it: Professor Jay McLeod Annotation to Mabey v. Mabey, 2005 NSCA 35, p. 407.

214. This is a summary of the incomes earned by the children (this is all the evidence about their incomes that was presented), the post-secondary costs, and the grants awarded and student loans incurred by the children for their post-secondary years:

C.

Year	Grants	Student loans	Net Post-secondary costs less Grants	Income
2008			$3,498.94
2009			$7,021.68
2010	$1,802	$8,111.28	$6,729.33	$2,823
2011	$930	$4,060.44	$2,992.90	$5,351
2012	$1,766.79		$2,233.26	$10,650

M.

Year	Grants	Student loans	Net Post-secondary costs less Grants	Income
2014	$10,835.07		$327.61
2015	$4,660	$7,713	$16,686.30	$4,243.72
2016 (to August)			$18,454.18

215. The post-secondary costs for C. and M. that the parents will share will not be reduced by a contribution from either child from their earnings or their student loans, and neither child is expected (for child support purposes) to contribute to the post-secondary costs in the years claimed from their earnings or their student loans for the following reasons:

a) Both children did, in fact, contribute significantly to the cost of their post-secondary schooling;

   i. **C.:** although C. worked during post-secondary school, she also took on student loans to pay for her schooling ($13,938.51) and she received grants ($2,732). The debt she incurred to continue school was substantial, and will need to be repaid. The debt and the grants qualify as her contribution to the cost of her post-secondary education (total $16,670.51). She should not be penalized for being industrious in pursuing both employment and other sources of income in order to fund her post-secondary schooling; and,

   ii. **M.:** M. also worked during post-secondary school, and she also took on student loans to pay for her schooling ($7,713) and she received grants ($4,660). The debt she incurred to continue school was substantial, and will need to be repaid. The debt and the grants qualify as her contribution to the cost of her post-secondary education so far (total $12,373). She should not be penalized for being industrious in pursuing both employment and other sources of income in order to fund her post-secondary schooling;

b) These are not children with the means to contribute to the cost of their post-secondary schooling. These are children with no assets, and only modest earnings, who grew up in impoverished circumstances, living with a mother with a modest income, the family at times receiving welfare, and receiving almost no support from their father over many years; and,

c) The extent of a child's contribution from their income is largely a matter of discretion for the trial judge, and will depend on the facts of each case.

216. The provisions in s. 7 refer to the child's contributions "if any". It must be remembered that "the contribution expected depends on the circumstances of the case": Lewi v. Lewi, supra, 2006 (Ont. C.A.), para. 159.

217. It is within the court's discretion to leave the support obligation of the father unaffected by the children's earnings. He has already benefited from their use of grants to reduce the cost of post-secondary education.

Other Claims

Spousal Support

218. The mother has claimed spousal support to start after the child support is paid in full and the children are no longer eligible. The parents separated on 21 October 2000 and were divorced on 25 September 2005. Spousal support was not claimed in the original application started in January 2001, nor in the divorce. The mother has had several opportunities to claim spousal support previously and has not done so. She cannot claim it now. As well, there is no jurisdiction under the Family Law Act to order spousal support after spouses are divorced. This claim is dismissed.

Medical and Dental Coverage

219. The mother claims medical, extended health, drug and dental coverage for M., to be covered by the father on his health care coverage plan from employment. There was no evidence about his employment, let alone about the benefits available to him. However, this is a reasonable claim, and meets the test for the provision of necessities under the Family Law Act, s. 34(2). The father shall ensure M. is shown as a beneficiary under his health plan.

Requirements to Notify Mother of Changes in Address and Employment Status

220. The mother claims that the father should advise her in writing of changes to his income and/or employment within 7 days. She also claims that he should advise immediately of any changes to his residential address, e-mail address, and phone number. Given the difficulty she has had getting disclosure from the father (before the motion to change was brought and after it was started), this is a reasonable claim.

Orders

221. There will be the following final order:

a) the order dated 11 February 2003 is changed as follows;

b) the father shall pay the table amount of child support for the children as follows:

   i. from 1 January 2004 on imputed income of $42,000 for 2 children $596 per month;

   ii. from 1 May 2006 on imputed income of $42,000 for 2 children $636 per month;

   iii. from 1 January 2007 on imputed income of $44,000 for 2 children $665 per month;

   iv. from 1 January 2011 on imputed income of $50,000 for 2 children $753 per month;

   v. from 1 January 2012 on imputed income of $55,000 for 2 children $817 per month;

   vi. from 1 January 2013 on imputed income of $60,000 for 1 child $546 per month;

   vii. from 1 January 2014 on imputed income of $65,000 for 1 child $594 per month; and,

   viii. from 1 January 2015 on imputed income of $75,000 for 1 child $682 per month;

c) for post-secondary education, each parent will contribute equally towards the cost of post-secondary education, which costs include tuition, school fees, residence, textbooks, computer, transportation and living expenses. The mother shall advise the father in writing of the expense. For any expense claimed, she shall deliver proof of the expense to him on a quarterly basis. The parents shall share these expenses equally;

d) the father shall pay his 50% share of the s. 7 expenses, which is $36,199.88 (as calculated in these reasons) as his contribution to the s. 7 expenses of the children for post-secondary education, medical expenses, daycare and camp, up to 31 August 2016;

e) the father shall produce to the mother every year, by 1 June, starting in 2017, copies of his Income Tax Returns and Notices of Assessment, pursuant to ss. 24.1 and the disclosure requirements of the Child Support Guidelines;

f) the father shall notify the mother in writing of changes to his income and his employment within 7 days of each change;

g) the father shall notify the mother immediately of any change to his residential address, e-mail address and telephone number;

i) the father shall designate M. as a beneficiary under the health care coverage plan available to him through his employment for medical, extended health, drug and dental coverage, and shall provide the mother with the benefits booklet from this health plan by 15 April 2017 (F.L.A. s. 34(1)(j));

h) this order results in arrears in child support (in both the table amount and s. 7 expenses). The father shall pay arrears of child support, in addition to the ongoing table amount and s. 7 expenses, in the amount of $300 per month starting 1 April 2017, until all arrears are paid in full. When there is no longer any table amount of child support owing, the arrears payment will increase to $1,000 per month. The mother shall notify the father and the Family responsibility Office in writing when there is no longer any child still eligible for monthly child support payments. If there is any default in the child support monthly payments of longer than 30 days (either for ongoing support or for arrears payments), the entire amount of arrears then owing is due and payable immediately;

i) the father shall be given credit for the payment of $6,435.19 in child support in the years from 2013 to 4 January 2016. The Family Responsibility Office shall adjust their records accordingly;

j) the Family Responsibility Office may enforce this order by garnishment;

k) the mother's claim for spousal support is dismissed; and,

l) any other claims by either parent not specifically addressed are dismissed.

Conclusion

222. This litigation and the resulting retroactive award of both the table amount and the s. 7 expenses is not a good process for the payment of child support for anyone in this family. It was not in the children's interests to have been receiving for many years a lower amount of child support than they were entitled to. It was not in the mother's interest, and certainly now, it will not be in the father's interests.

223. While retroactive child support awards should be available to help correct these situations when they occur, the true responsibility of parents is to ensure that the situation never reaches a point when a retroactive award is needed: D.B.S., supra, 2006 (S.C.C.), para. 135.

Costs

224. The parties may make written submissions for costs, no longer than two pages (with Offers to Settle and Summary of Costs attached), to be filed with a Form 14B motion. Mother shall serve and file by Friday 31 March 2017. Father shall serve and file by Friday 14 April 2017.

Released: 10 March 2017

Justice Curtis