Court File and Parties

Date: April 27, 2017

Court File No.: D30576/02

Ontario Court of Justice

Between:

Carmel Powell Applicant

- and -

Jerome Jesquith Respondent

The Ministry of Community and Social Services Intervenor

Counsel:

• Renata Kirszbaum, for the Applicant
• Jerome Jesquith, Acting for Himself
• Helen Kurgatnikov Miller, for The Ministry of Community and Social Services

Heard: March 27, 2017

Justice: M. Sager

Judgment

Introduction

[1] This hearing was for a determination of the Respondent's Motion to Change the child support order of Justice Geraldine Waldman dated September 22, 2008, requiring the Respondent to pay $211.00 per month in child support for his son, Tirone Jesquith born March 15, 2001, based on an imputed annual income of $25,000.00 and the Child Support Guidelines.

[2] In his Motion to Change, the Respondent asked that his child support obligation for Tirone be terminated. At the hearing of his Motion, the Respondent asked that his child support be reduced to $100.00 per month.

[3] The Applicant opposes the relief being sought by the Respondent and has brought her own claim to increase the Respondent's child support payment retroactive to 2010. She asks that income be imputed to the Respondent in the amount of $50,000.00 per year and that child support be fixed at $450.00 per month in accordance with the Child Support Guidelines, retroactive to January 2010.[1]

[4] When the Respondent commenced his Motion to Change in March 2016, he was approximately $5,900.00 in arrears of child support. At the date of trial arrears of child support were less than $400.00.

[5] The Ministry of Community and Social Services had an interest in the case and at the date of trial the court was advised that all of the arrears are owing to them.

[6] The parties, including the Ministry of Community and Social Services, submitted their evidence in chief in affidavit. The Respondent was subjected to cross examination and each party made submissions. The Applicant was not cross examined as the Respondent advised that he did not wish to question the Applicant.

Overview of the Application before the Court

[7] Between 2002 and 2008 the parties were involved in litigation off and on regarding their son, Tirone Jesquith, who is now 15 years old. The majority of the litigation focused on the issue of child support.

[8] On July 14, 2005, on an uncontested basis, the Applicant was granted sole custody of Tirone and the Respondent, who owned and operated his own restaurant at the time, was ordered to pay child support in the amount of $725.00 per month retroactive to October 23, 2005 based on an imputed annual income of $93,914.00.

[9] The Respondent commenced a Motion to Change in 2007 which resulted in the order that is now the subject of this Motion to Change. When he commenced the Motion to Change in 2007, he was in significant arrears of child support, all of which were owed to the Ministry of Community and Social Services. Justice Waldman notes in her endorsement of September 22, 2008, that the Ministry of Community and Social Services agreed to forgive $17,000.00 of the arrears owing at that time.

[10] The current order was made by Justice Waldman on September 22, 2008. At the time the Respondent was in receipt of social assistance as his restaurant was no longer in operation. He claimed he could not find work and should not be required to pay child support.

[11] Justice Waldman noted in her endorsement dated September 22, 2008 that while the Respondent provided some financial disclosure what he provided was insufficient and that his sworn financial statement was "very deficient".

[12] Justice Waldman went through the Respondent's work history and skills and noted that he did not provide an explanation for his ongoing unemployment. Justice Waldman found that the Respondent was intentionally underemployed and that "given his age, skills, work history he is able to earn $25,000.00 a year". Justice Waldman fixed the Respondent's child support payment at $211.00 per month based on an imputed annual income of $25,000.00 and the Child Support Guidelines in effect at the time.

[13] In March 2016, the Respondent commenced this Motion to Change in the Oshawa Superior Court of Justice Family Court as he lives in Pickering. The Applicant successfully had the file transferred to this court.

[14] On August 26, 2016, the court made an order on consent requiring the Respondent to provide the Applicant with comprehensive financial disclosure.

[15] On November 29, 2016, the parties attended in court and the Respondent agreed to provide additional financial disclosure to the Applicant and the Motion to Change was scheduled as a backup hearing on December 19, 2016. A time table was ordered for the parties to serve and file their affidavit evidence in chief and the Respondent was given leave for his sister to be cross examined via Skype should the Applicant wish to cross examine her. Finally, in the event this matter did not get heard as the backup trial on December 19, 2016, it would proceed on March 27, 2017.

[16] The parties served and filed affidavit evidence in chief and the court reviewed the following:

• The Respondent's Motion to Change issued March 11, 2016, Tab 1, Volume 2 of the Continuing Record
• The Respondent's Change of Information Form filed March 11, 2016, Tab 2, Volume 2 of the Continuing Record
• The affidavit of Lorraine Phillips-Agard, for the Ministry of Community and Social Services, sworn April 27, 2016, Tab 4, Volume 2 of the Continuing Record
• The affidavit of the Applicant sworn May 3, 2016, Tab 6, Volume 2 of the Continuing Record
• The Applicant's Response to Motion to Change, Tab 7, Volume 2 of the Continuing Record
• The affidavit of the Applicant sworn August 11, 2016, Tab 8, Volume 2 of the Continuing Record
• The Financial Statement of the Respondent sworn October 27, 2016, and court ordered disclosure, Tab 9, Volume 2 of the Continuing Record
• The affidavit of Rosa De Lira of the Ministry of Community and Social Services, sworn October 26, 2016, Tab 1, Volume 3 of the Continuing Record
• The affidavit of the Respondent sworn December 12, 2016, Tab 2, Volume 3 of the Continuing Record
• The supplementary affidavit of Rosa De Lira of the Ministry of Community and Social Services, sworn December 6, 2016, Tab 3, Volume 3 of the Continuing Record
• The supplementary affidavit of Johanne Horsfall of the Ministry of Community and Social Services, sworn March 23, 2017, Tab 4, Volume 3 of the Continuing Record

The Evidence

The Respondent's Evidence

[17] The Respondent's evidence is straight forward. He is almost 60 years old, has arthritis and says he is too old to work. He says that his children and family do not want him to work given his age and arthritis. He gave evidence that he has not worked since 2004 when the restaurant he owned and operated closed.

[18] In his Change of Information Form, the Respondent indicates that the change he is seeking to his child support payment is based on his being unemployed. His financial statement sworn on October 27, 2016, indicates on page 1 that he has been unemployed and in receipt of social assistance since 2007.

[19] The Respondent's evidence is that he has paid child support for a very long time. As he is not currently working and unable to work, his child support should be reduced to somewhere in the range of $100.00 per month.

[20] The Respondent claims to be supported by his family including several children, his girlfriend and his older sister who lives in Jamaica. When asked how much money his family gives him, the Respondent said that they do not give him money. They "just pay the mortgage and stuff" and that his girlfriend and children help him pay his personal expenses. The Respondent said he has 14 children in this country and they take care of him.

[21] The Respondent is the registered owner of the house he lives in located at 1526 Marshcourt Drive in Pickering, Ontario and a 2008 Mercedes Benz MLX, both of which he claims were purchased by his older sister who lives in Jamaica. He claims she is the beneficial owner of the house and car and that they were registered in his name to allow him to take care of his sister's assets while she is out of the country.

[22] The Respondent disclosed the house on his financial statement sworn October 27, 2016[2], and attributed a value to the home of $400,000.00. His financial statement discloses a mortgage on the house with Equity Trust with an outstanding balance of $200,000.00 as of the date he swore his financial statement.

[23] The Respondent provided financial disclosure to the Applicant that revealed that the house in Pickering was transferred into his name from his nephew's name on February 19, 2009. On that same date, a mortgage was registered against the home in favour of The Equitable Trust Company in the amount of $196,000.00. The Respondent is the sole mortgagor.

[24] The Respondent could not explain how he was eligible for a mortgage in 2009 when he had no income. His evidence was that his sister made all the arrangements with the lawyer and he just went in and signed the paperwork.[3]

[25] The Respondent gave evidence that his sister bought the Mercedes Benz MLX in his name but he could not remember when the car was purchased.[4] On his financial statement sworn October 27, 2016, the Respondent disclosed the vehicle and attributed a value of $15,000.00 at the date he swore the financial statement.[5] While there was no debt associated with the car at the date of the hearing, the Respondent provided the Applicant with an Equifax statement that demonstrates that there was a car loan but it had been paid in full.

[26] When asked how he qualified for a car loan without an income, the Respondent gave evidence that his income was not an issue because "the house is in my name and I have good credit".[6]

[27] The Respondent gave evidence that his sister sends him money for the maintenance of the house and car including the mortgage and that all payments come out of his bank account.

[28] The Respondent's Equifax statement disclosed that some of his car payments were late. He was asked why some of the car payments were late if his sister was sending him money to make the payments. The Respondent said "sometimes she doesn't send the money on time so what can I do".

[29] The Respondent's evidence is that he was on social assistance when he commenced this proceeding but that was no longer the case at the date of the hearing and he has no current source of income.[7]

[30] The Respondent disclosed his last three years of income tax returns but could not explain the gross business income declared on his 2013, 2014 and 2015 Income Tax Returns in the amounts of $15,425.00, $14,860.00 and $12,548.00. When asked to explain what this income was from he said, "I don't know."

[31] Despite being given permission by the court to file affidavit evidence from his sister and have her attend to be cross examined via Skype, the Respondent did not present a properly sworn affidavit from his sister corroborating the Respondent's evidence that he holds a house and car registered in his name in trust for his sister who lives in Jamaica.[8] Nor did he make his sister available to be cross examined by the Applicant's counsel and counsel for the Ministry of Community and Social Services.

[32] The Respondent provided copies of bank statements to the Applicant. When asked about money deposited into his bank account, the Respondent gave evidence that all of the deposits are money that his sister gave to him.

[33] In summary, the Respondent's position is that he requires relief from the court as he is not working, is unable to work and cannot pay child support for Tirone in excess of $100.00 per month.

The Applicant's Evidence

[34] The Applicant's position is also very clear. Her evidence is that after the Respondent obtained the order in 2008 reducing his child support obligation from $725.00 per month to $211.00, the Respondent took steps to have his house in Pickering, Ontario that was registered in his nephew's name put back into his name. She claims that the Respondent has always been the beneficial owner of the house and that he put title in his nephew's name "because he was on social assistance, owned 2 homes and was involved in illegal activities".

[35] The Applicant also deposed that after Justice Waldman reduced the Respondent's child support obligation on September 22, 2008, the Respondent bought a 2008 Mercedes Benz MLX.

[36] The Applicant argues that the Respondent must have some form of income in order to qualify for a $200,000.00 mortgage and a car loan.

[37] In support of her claim that income should be attributed to the Respondent in the amount of $50,000.00 per year, the Applicant went through the Respondent's fixed expenses with him as disclosed on his bank statements. A review of the bank statements set out the following expenses[9]:

• Mortgage - $1,335.00 per month
• Car Insurance - $208.00 per month
• Electricity – $53.00 on average per month
• Enbridge - $84.00 on average per month
• Water - $51.00 on average per month
• Cell Phone - $42.50 on average per month
• Credit Card payments – $73.75 on average per month
• Home phone/Internet – Bell Canada - $46.00 on average per month

Total Expenses of $1,893.25 per month

[38] The Respondent discloses the following additional monthly expenses on his financial statement sworn October 27, 2016:

• Property insurance - $100.00
• Home Repairs and Maintenance - $100.00
• Alcohol and Tobacco - $50.00
• Groceries - $500.00
• Meals outside the home - $100.00
• Entertainment/Recreation for children - $100.00

Total Additional Expenses of $950.00 per month

[39] The Applicant asks that the court reject the Respondent's evidence that he is supported by his family. The Applicant argues that the Respondent is able to meet his monthly expenses that are either set out in his bank statements or his sworn financial statement in the amount of $40,000.00 per year and therefore must have an income to enable him to do so. In order to have $40,000.00 per year to pay his expenses, the Applicant argues that the Respondent must earn $50,000.00 before paying income taxes. The Applicant seeks an order imputing annual income to the Respondent of $50,000.00 and fixing child support on that amount retroactive to January 1, 2010.

Legal Considerations

[40] The father's motion to change child support is governed by subsection 37(2.1) of the Family Law Act which reads as follows:

Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

[41] In paragraphs 51-60 of Trang v. Trang, 2013 ONSC 1980, the court discussed how courts should address support change motions when income was imputed to a payor in the existing order as follows:

[51] When a court imputes income, that's a determination of a fact. It's not an estimate. It's not a guess. It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on – or wait for -- representations from the payor.

[52] A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before.

Or,

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

[53] If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications – as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

[54] Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.

[55] Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.

[56] If for example the original support order imputed income because the court concluded an unemployed payor should have been working, it would be illogical to allow the payor to extinguish that determination by returning on a motion to change, with proof that he wasn't working. That wouldn't constitute a change in circumstances.

[57] If a trial judge imputed income to a self-employed person on the basis that their tax return didn't reflect cash sales and excessive write-offs, there should be a presumption that so long as the payor maintains the same business activities and accounting practices, subsequent tax returns will be equally unreliable.

[58] Imputed income matters. The reason why income had to be imputed matters.

[59] If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.

[60] But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct – and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.

[42] The law was summarized by Justice Sheilagh O'Connell, who wrote in paragraph 38 of Nejatie v. Signore, 2014 ONCJ 653:

It is well settled law that, if income is imputed, then the issue will generally be res judicata on a motion to vary or change support. See: Bemrose v. Fetter, 2007 ONCA 637. Although the court always has discretion with respect to the issue of res judicata and can consider fraud, fresh evidence, additional disclosure or issues of fairness, the principle of res judicata provides that generally, a matter cannot be re-litigated once it has been determined on its merits.

[43] Where additional income is imputed to a parent who receives cash income, the undeclared income is "grossed up" to take account of its tax-free nature, notwithstanding the payor's liability to be reassessed by CRA. See: Ali v. Williams-Cespedes, 2015 ONSC 3560.

[44] There must be an evidentiary basis to make an income determination. See: Quintal v. Quintal. The onus is on the person requesting it to show a reasonable inference upon which the order imputing income can be made. See: West v. West.

[45] A payor's lifestyle can provide the criteria for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); and Price v. Reid, 2013 ONCJ 373.

[46] In Bak v. Dobell, 2007 ONCA 304 at para. 43, Lang J.A., of the Ontario Court of Appeal, observed that "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."

[47] Parents have a joint and ongoing obligation to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. See: Drygala v. Pauli.

[48] The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

[49] Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, [2011] O.J. No. 3654, per Justice Marvin A. Zuker, paragraphs 140 and 141.

[50] The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli. Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton and Stoangi v. Petersen.

[51] Justice Stanley Sherr summarized the law with respect to retroactive child support orders in K.C. v. S.H., 2016 ONCJ 121, from paragraphs 28-38 as follows:

[28] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
2. The conduct of the payor parent.
3. The circumstances of the child.
4. The hardship that the retroactive award may entail.

[29] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor's interest in certainty must be balanced with the need for fairness and flexibility.

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

[31] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5).

[32] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done the payor can no longer assume that the status quo is fair (D.B.S., par. 121).

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

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

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

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

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

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

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

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

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

Analysis

[52] The court looks to the decision of the Ontario Superior Court of Justice in Trang v. Trang, when being asked to vary a support order where income was imputed to the payor in the existing order. As stated in Trang, income imputed to a payor is a finding of fact. On a Motion to Change the payor must produce evidence of a change in circumstances that demonstrates that it would now be inappropriate to impute income to the payor at all or in the amount imputed to him or her on the previous hearing.

[53] The Respondent has not presented any evidence to explain why income had to be imputed to him in the first place or why it is no longer appropriate to impute income to him at the level established by Justice Waldman in September 2008 or some other amount. He has presented absolutely no evidence of changed circumstances that would justify a reduction in his child support obligation.

[54] The Respondent did not provide any evidence to support his claim that his sister is the source of the money deposited to his bank accounts.

[55] The Respondent did not provide any documentary evidence to support his claim that he cannot work due to his age or arthritis.

[56] The Respondent did not provide any evidence other than his own to support his claim that his sister is the true owner of the house and car registered in his name.

[57] The Respondent did not provide a satisfactory explanation as to how he is supporting himself without any source of income at all.

[58] In these circumstances the Respondent has not met his onus of establishing that it would not be appropriate to continue to impute income to him.

[59] The Respondent has not provided the court with any evidence of a negative change in his life since the order of Justice Waldman that would justify a reduction of child support. In 2008, Justice Waldman found that the Respondent was intentionally underemployed and imputed income to him at $25,000.00 annually.

[60] As there is no evidence of a change in the Respondent's circumstances justifying the relief requested in his Motion to Change, the Respondent's Motion to Change must be dismissed.

[61] The evidence presented by the Applicant does demonstrate a positive change in the Respondent's financial circumstances warranting a review of his ongoing child support obligation.

[62] Since the previous order was made on September 22, 2008, the Respondent became the sole owner of a house in Pickering, Ontario with a value of at least $400,000.00 and a 2008 Mercedes Benz with an approximate value of $15,000.00. The Respondent qualified for a mortgage of $196,000.00 and a car loan of approximately $24,500.00. The expenses associated with the house and car (not including gas) are approximately $2,019.50 per month or $24,234.00 per year.

[63] By the court's calculation, the Respondent has total expenses of at least $2,843.25 per month. In order to meet these expenses, he must earn a net income of at least $34,119.00 per year. The Applicant argues that the court ought to gross up this amount to account for income tax at a rate of 25%.

[64] The court rejects the Respondent's evidence that he is holding the house and car in trust for his sister who he claims is the true beneficial owner of both. The Respondent's evidence was unbelievable. He provided no reasonable explanation as to why the house is registered in his name if his sister is the true owner. He provided no documentary evidence to support his claims. He also provided no documentary evidence to support his evidence that his sister gives him money to pay the mortgage and all of the bills associated with the house and car. The documentary evidence the Respondent did provide lists him as the legal owner of the house and car and there is no evidence other than the oral evidence of the Respondent to contest the documentary evidence.

[65] The court finds that the Respondent was untruthful and that the evidence he gave at the hearing was completely unreliable. The Respondent could not explain the information on his income tax returns, the letters from his real estate lawyer detailing the house transfer from his nephew to him, how he qualified for a mortgage or car loan or the many mistakes he says he made on the sworn financial statement he filed in this proceeding and in the 2008 proceeding.

[66] The court finds that the Respondent attempted to tailor his evidence to support his claim even when doing so resulted in evidence that can only be described as outlandish. Some examples are as follows:

(a) Despite acknowledging that his car has 300,000 km on it he says he has not done any repairs on the car and that the only expense is an oil change at a cost of $50.00;

(b) When asked how many KM he currently drives the Respondent said he did not know and would not commit to an estimate;

(c) When asked why the Respondent did not disclose an expense on his sworn financial statement for gas and oil for his car he said that he did not drive the car very often. The Respondent was asked when he last put gas in the car, he said he had done so yesterday at a cost of $20.00. When he was asked how long that would last he said he did not know;

(d) The Respondent gave evidence that his sister who is the true owner of his house and car has bank accounts in Canada. When asked why he pays the bills associated with the house and car if his sister has bank accounts in Canada he said, he did not know why and that his sister gives him the money to pay the bills through his account; and,

(e) The Respondent gave evidence that his sister was in Toronto recently and when asked why she did not stay in her house when she was here, he said, "What house?"

The Respondent's Income for Prospective Child Support

[67] The Respondent has not provided the court with an adequate explanation for the monies that are deposited into his bank accounts. Nor has he proven on a balance of probabilities that someone other than himself is the beneficial owner of the house he lives in and the car he drives.

[68] As the Respondent has not provided the court with a truthful account of his income or assets, the court is left to draw conclusions from the limited information the Respondent allowed the court to have.

[69] The evidence supports a finding that the Respondent has income in excess of the $25,000.00 attributed to him by Justice Waldman in September 2008 and the ability to pay increased child support for Tirone.

[70] Based on the Respondent's expenses that are detailed above, the court finds that the Respondent has an annual net income of at least $34,119.00. The court adds in a modest amount of $50.00 per month for gas for the Respondent's vehicle and $50.00 per month for clothing. This results in an additional $1,200.00 in annual expenses bringing the total to $35,319.00. When this amount is grossed up for income tax, the Respondent would have to earn $41,913.00 annually in order to have a net disposable income of $35,319.00.

[71] The court notes that according to the Respondent's Equifax printout, he was paying $699.00 per month towards his car loan until approximately December 16, 2014. The report states that the highest credit the Respondent had with this creditor was $24,449.00. As the account was opened with Mercedes Benz in December 2011, that translates into approximately 3 years of monthly payments of $699.00.

Commencement Date for Retroactive Child Support

[72] The Applicant requests an order for increased child support retroactive to January 1, 2010. She first notified the Respondent of her intention to seek a retroactive increase in child support in August 2016 when she served her Response to Motion to Change on the Respondent. The Applicant argues that the Respondent has not been forthcoming about his true income, did not comply with the ongoing disclosure provision of Justice Waldman's order, and, has engaged in blameworthy conduct that justifies an increase in child support retroactive to 2010.

[73] The Respondent did not comply with the disclosure provisions of Justice Waldman's order of September 22, 2008. He did not provide the Applicant with his income tax returns or notices of assessment. As his income tax returns for 2013-2015 disclose business income, he was obliged to provide additional disclosure pursuant to section 21 of the Child Support Guidelines, which he did not do.

[74] Justice Waldman ordered the Respondent to advise the Applicant as soon as he finds employment. It is clear that the Respondent did not keep the Applicant advised of changes in his financial circumstances that may result in an increase in child support.

[75] The Respondent has a long history of not providing adequate financial disclosure to the Applicant so that she can determine his true income. Determining the Respondent's income has always been a guessing game for the Applicant.

[76] The Respondent paid no child support at all between December 2013 and February 2016. The payments he made between March 2016 and August 2016 were not made voluntarily but rather were the result of a federal garnishment.

[77] As the Respondent's income has increased since the September 22, 2008 order such that he could finance a house and a car, the Respondent knew or ought to have known that his child support obligation for Tirone would increase accordingly. He made the choice not to disclose the positive change in his financial circumstances to the Applicant. The Respondent should not be entitled to benefit as a result of his own conduct.

[78] The Respondent has assets and is able to pay a retroactive order.

[79] The court is obliged to consider why the Applicant delayed in seeking an increase to the child support payments. The Applicant did not explain her delay in coming to court and requesting a change to the child support order. She does not explain why she did not ask the Respondent for an increase in child support prior to receiving notice of his Motion to Change.

[80] The Applicant does not explain her delay in seeking an increase to child support given that she had known for quite some time that the Respondent was the beneficial owner of the house in which he resides in Pickering, Ontario.

[81] In her affidavit evidence sworn August 11, 2016, the Applicant states that the parties were involved in a relationship between 1999 and 2002. She states that:

"During the currency of our relationship the Respondent put his home at 1526 Marshcourt Drive, Pickering, into his nephew's name because he was on social assistance, owned 2 homes and was involved in illegal activities."

[82] The Applicant's evidence shows that she knew the Respondent owned at least one home but does not explain why she did not come before the court with this evidence prior to 2016.

[83] The Applicant also deposes that:

"In July, 2015 I spoke with the Respondent for about 2.5 hours. The Respondent complained to me that his nephew Wade Farrell and the Respondent's sister Carmen had taken out a second mortgage without his knowledge while Wade had title to the home, and they used the money for their own purposes. The Respondent told me that he had to pay off this mortgage in the amount of $30,000 (to avoid power of sale proceedings) and then another $50,000 in cash to discharge the mortgage. He told me that he paid these amounts in cash. He also told me that he paid for his Mercedes for $30,000 in cash and also owed $17,000 in addition."

[84] The Applicant does not explain why she did not commence a Motion to Change for an increase in child support immediately after having this conversation with the Respondent. She provides no evidence that she asked the Respondent to increase his child support payments during this conversation or prior to serving her Response to Motion to Change in which she makes the request. The Applicant only broached the subject of increased child support with the Respondent when she served her Response to Motion to Change on him in August 2016.

[85] Even though the Applicant only put the Respondent on notice that she was seeking an increase in child support when she served him with her Response to Motion to Change on August 13, 2016, she argues that the court should make a retroactive order increasing child support as of January 1, 2010 because Respondent has engaged in blameworthy conduct that would justify an award that predates the date upon which she gave him effective notice.

[86] The court agrees that the Respondent has engaged in blameworthy conduct and that an order should predate when the Applicant gave the Respondent notice of her desire for an increase in child support payments for the following reasons:

(a) The Respondent failed to provide the Applicant with annual financial disclosure as ordered by Justice Waldman;

(b) The Respondent failed to advise the Applicant of his improved financial circumstances and voluntarily increase his child support payments;

(c) The child was deprived the benefit of child support from the Respondent at the rate he should have been paying;

(d) The child for whom the support is payable lives with his mother who relies on social assistance;

(e) The child for whom the support is payable will benefit from the retroactive award;

(f) The court's inability to determine if a retroactive order will cause the Respondent any hardship falls squarely on the Respondent who has not been honest about his income and assets in this proceeding;

(g) The Respondent has never provided full and frank financial disclosure to the Applicant;

(h) The court found no air of reality or truth in the Respondent's presentation of his evidence in this case; and,

(i) The Respondent was paying a very low amount of child support when he knew or ought to have known that he should have been paying significantly higher child support.

[87] The court will not grant the Applicant's request for an order increasing child support retroactive to January 1, 2010 for the following reasons:

(a) The Applicant was fully aware of the Respondent's home ownership and favourable financial circumstances dating back over a decade, even before the order of September 22, 2008, but did not bring the matter back to court;

(b) The Applicant did not commence court proceedings in July 2015 after speaking with the Respondent who shared his financial good fortune with her during a two and a half hour conversation;

(c) The Applicant failed to explain why she did not bring a Motion to Change seeking increased child support years ago, knowing that the Respondent's financial circumstances had significantly improved; and,

(d) The Applicant provided no explanation for her delay in putting the Respondent on notice that she expected an increase in child support payments.

Conclusion

[88] After a careful consideration of all of the evidence and the factors set out in D.B.S. v. S.R.G. et al, 2006 SCC 37, the Respondent will be required to pay an increased amount of child support retroactive to August 1, 2013 based on an imputed income of $41,913.00.

Order

The order of Madam Justice Waldman dated September 22, 2008 shall be varied as follows:

1. Paragraph 2 shall be deleted and replaced with the following:

"Commencing on August 1, 2013 and on the 1st of each month thereafter, the Respondent shall pay child support to the Applicant for the child of the relationship namely, Tirone Jesquith born March 15, 2001, in the amount of $378.00 per month based on an imputed annual income to the Respondent of $41,913.00 and the Child Support Guidelines."

2. The Respondent will receive credit for all amounts he has paid in child support as reflected in the records of the Family Responsibility Office.

3. The Respondent shall pay the arrears of child support at the rate of $150.00 per month until paid in full.

4. The balance of the order of Justice Waldman dated September 22, 2008 shall continue in full force and effect.

5. If any party is seeking costs of the Motion to Change they shall deliver their submissions to the other parties within 20 days of the date of this order and the responding parties shall have 15 days to respond. Submissions whether in support of an order for costs or in response to a request for costs must be no more than 3 pages in length not including attachments or a Bill of Costs.

6. The cost submissions, if any, shall be delivered to the trial coordinator so that they may be brought to my attention.

Dated this 27th day of April 2017.

Justice Melanie Sager

Footnotes

[1] The Table amount from January 1, 2010 until November 1, 2011 would be $462.00 per month. As the Tables were updated as of December 2011, the new amount as of January 1, 2012 would be $450.00 per month.

[2] Somehow when the Respondent commenced his Motion to Change in Oshawa in March 2016, he was able to issue his motion without having served and filed a sworn Financial Statement.

[3] All of the correspondence from the real estate lawyer is addressed to the Respondent, not his sister. Retainer funds received by the lawyer were noted to be from the Respondent, not his sister.

[4] The Respondent's Equifax printout states that the Respondent's account with Mercedes Benz financing was opened on December 20, 2011.

[5] The Respondent gave evidence at the hearing that the car was only worth $6,000.00 and the entry on his financial statement sworn October 27, 2016 was an error.

[6] The Respondent gave evidence that he has good credit despite owing $65,000.00 to the Ministry of Finance in unpaid retail sales tax collected when he owned a restaurant.

[7] The court was provided with a financial statement sworn by the Respondent on September 1, 2008, which was made an exhibit. The financial statement, which was sworn five months before the house was transferred into the Respondent's name, discloses that he is unemployed and in receipt of social assistance.

[8] The Respondent arrived at the hearing with a letter from his sister that was not admitted in evidence as it was not a sworn affidavit and his sister was not made available to be cross examined by the mother as agreed upon on November 26, 2016.

[9] The mother had slightly different calculations. These calculations are those of the court.