Court File and Parties

Court File No.: D42459/06 Date: March 29, 2018 Ontario Court of Justice

Between:

LEAH REDBURN Applicant

— AND —

CHRISTOPHER VRADIS Respondent

Before: Justice Melanie Sager

Reasons for Judgment on Uncontested Trial heard in chambers on affidavit evidence

Released on: March 29, 2018

Counsel:

• Valois P. Ambrosino, counsel for the applicant
• Christopher Vradis, on his own behalf

Introduction

[1] This is the Applicant's (mother) Motion to Change the order of Madam Justice Waldman dated April 6, 2009, with respect to child support for the parties' daughter namely, Eleni Leah Vradis born March 3, 1994. The mother is seeking a retroactive order requiring the Respondent (father) to contribute towards section 7 expenses incurred by the mother for Eleni between 2012 and 2016. The expenses incurred between 2013 and 2016 were in relation to her post-secondary education.

[2] The father did not respond to the Motion to Change and as a result his position on the issues is not before the court.

The Issues

[3] The following are the issues that arise out of the mother's motion:

(i) Is Eleni entitled to child support for the years being claimed by the mother?

(ii) Has there been a change in circumstances warranting a change to Justice Waldman's order?

(iii) If there has been a change in circumstances, is the mother entitled to an increase in retroactive child support? If so, retroactive to when?

Background of the Litigation and Undisputed Facts

[4] The following are the relevant undisputed facts in this case:

(a) The parties were involved in a common law relationship from approximately 1990 to 2006. Eleni, who is now 24 years old, is the only child of that relationship.

(b) The mother commenced proceedings in this court in 2006 for custody and child support. Following the commencement of this action, the parties were involved in legal proceedings both in this court and the Superior Court of Justice for many years.

(c) In the course of the litigation in this court, a temporary order was made requiring the father to pay the mother child support for Eleni. On June 20, 2007, on consent, Justice Waldman ordered that the proceeds of a GIC being held in the parties' real estate lawyer's trust account shall continue to be held as security for child support and shall be utilized to satisfy any outstanding support payments.

(d) On September 28, 2008, Justice Geraldine Waldman struck the father's pleadings for failure to comply with disclosure orders. On April 6, 2009, Justice Waldman made a final order on a default basis imputing income to the father of $111,800.00 per year and fixed his child support obligation at $969.00 per month in accordance with the Child Support Guidelines retroactive to October 1, 2006.

(e) The father issued a Notice of Appeal of Justice Waldman's order striking his pleadings, but ultimately abandoned the appeal.

(f) The father has a very long history of not complying with court orders.

(g) Despite the final child support order of Justice Waldman dated April 6, 2009, the mother had to raise Eleni with little contribution from the father for most of her childhood following the parties' separation in 2006.

(h) The mother received no voluntary child support payments at all for Eleni following separation. It took 10 years for the Applicant to collect a substantial amount of child support arrears owed to her.

(i) On May 20, 2015 the mother brought a motion seeking an order for the release of the funds being held in trust as security for child support as ordered by Justice Waldman on June 20, 2007, to satisfy over $90,000.00 in child support arrears owed by the father to the mother. On June 17, 2015, Justice James Nevins heard the mother's motion and on July 29, 2015 made an order permitting the mother to access the funds held in trust to pay arrears of child support.

(j) In her motion, the mother also requested an order requiring the father to pay his proportionate share of section 7 expenses incurred by her between 2007 and 2014, which she calculated to be $42,903.13; and, that this amount also be paid to her out of the proceeds of the GIC being held in trust as security for child support.

(k) Justice Nevins declined to make the order requested by the mother requiring the father to contribute towards section 7 expenses for Eleni, as the final order of Justice Waldman did not include an order for payment by the father of such expenses.

(l) The Applicant did not ask the father to contribute towards any special or extraordinary expenses by the Respondent until she served this Motion to Change on him on September 26, 2016.

(m) The mother's Motion to Change child support was issued on June 8, 2016 and served personally on the father on September 29, 2016. In her Motion to Change the mother requested contribution by the father towards the cost of Eleni's special or extraordinary expenses retroactive to 2007.

(n) On December 16, 2016, the father was given an extension of time to serve and file his Response to Motion to Change and sworn Financial Statement until January 13, 2017.

(o) On February 24, 2017, after failing to respond to the mother's Motion to Change, despite being giving an extension of time to do so, the father was noted in default and the mother was permitted to proceed to request final orders by way of a 23C Affidavit in Support of Uncontested Trial. On that date, the court was provided with the mother's affidavit for uncontested trial and her counsel's Bill of Costs.

(p) On March 30, 2017, the court released an endorsement detailing concerns about the relief being sought by the mother to enable her to be prepared to address the concerns on the next court date.

(q) The matter was adjourned to May 31, 2017.

(r) On May 30, 2017, at the mother's request, the matter was adjourned to August 25, 2017.

(s) On August 23, 2017, in response to the court's concerns, the mother filed an updating Affidavit sworn August 21, 2017, a Factum, and a Brief of Authorities.

(t) On August 25, 2017, the mother was advised that the court's decision was under reserve.

(u) Upon review of the additional material filed by the mother, the court continued to have concerns that required submissions from counsel and possibly additional evidence from her.

(v) On December 1, 2017, an endorsement was released by the court in which the trial coordinator was instructed to schedule a court attendance on this matter for counsel to make submissions on issues raised in the endorsement. An appearance was scheduled for January 16, 2018.

(w) On January 16, 2018, the mother attended in court with counsel who filed an updating affidavit and a supplementary Brief of Authorities in advance of the court date. The mother advised the court that she is seeking the following final orders:

(i) An order fixing the Respondent's child support arrears up to and including August 1, 2016 at $10,035.13;

(ii) An order requiring the Respondent to pay $18,532.00 towards the cost of Eleni's completed post-secondary education in addition to the arrears of $10,035.13;

(iii) Costs of the motion; and,

(iv) An order that all amounts ordered payable by the father be paid out of funds being held in trust as security for support pursuant to the order of Justice Waldman dated June 20, 2007.

(x) On January 25, 2018, the court contacted counsel for the mother requesting an updated Statement of Arrears from the Family Responsibility Office. The court followed up with counsel on February 15, 2018 and the Statement of Arrears was provided to the court by counsel for the mother on March 13, 2018.

Undisputed Facts in Relation to Eleni's Post-Secondary Education Costs

(y) Eleni pursued a post-secondary education in Montreal at Cegep John Abbott College from 2013-2016 where she studied BioPharmaceutical Production Technology. While at school, Eleni lived with her maternal uncle's family. The mother paid her brother rent for Eleni.

(z) During the three years Eleni was away at school between 2013 and 2016, she came home for major holidays and the summer.

(aa) Eleni graduated in July 2016.

(bb) During the period of time Eleni was away at school pursuing a post-secondary education (2013-2016), no change was made to the child support order and the Respondent was still required to pay child support for Eleni based on his annual imputed income of $111,800.00 and the Child Support Guidelines.

(cc) The Applicant experienced a steady decline in her income between 2012 and 2016, from $59,958.00 in 2012 to $47,765.00 in 2016. She explains that the largest decline was due to her employer no longer allowing her to work overtime.

(dd) Eleni worked during the summers and earned approximately $4000.00 per summer.

(ee) The mother funded Eleni's post-secondary education. Eleni did not incur any debt or utilize her summer earnings to contribute towards the cost of her post-secondary education.

(ff) Eleni completed her post-secondary education in July 2016 and is no longer entitled to child support. The mother notified the Family Responsibility Office of the terminating event and as of the date of this decision, there are no arrears of child support owed by the father to the mother pursuant to Justice Waldman's order.

The Mother's Position on the Motion

[5] The mother seeks an order for contribution by the father towards expenses she incurred for Eleni in 2012, which she believes are proper special or extraordinary expenses pursuant to section 7 of the Child Support Guidelines (section 7 expenses). They are the costs of a college application of $117.00; school transportation of $364.42; and, a cell phone of $888.03.

[6] The mother also seeks an order requiring the father to pay his proportionate share of the cost of Eleni's post-secondary education. Eleni attended college in Montreal between 2013 and 2016, at a cost of approximately $26,906.66 which was paid for in full by the mother. The costs the mother includes as part of Eleni's post-secondary education are tuition, room and board, transportation, cell phone, extracurricular activities, eye glasses and dental costs. She seeks an order requiring the father to pay his proportionate share of these expenses based on their respective incomes.

[7] The mother also asks for an order that the amounts owing to her be paid out of funds held in trust as security for child support pursuant to Justice Waldman's order of June 20, 2007, which she advises amounts to $27,337.07.

The Law

(a) Is Eleni Entitled to Child Support for the Years Being Claimed by the Mother?

[8] The Motion to Change was issued on June 8, 2016 when, according to the mother's evidence, Eleni was still in school.

[9] Section 31 of the Family Law Act provides that:

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

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[10] Eleni turned 18 years of age on March 3, 2012. She began her post-secondary education in September 2013 at age 19.

[11] The father did not respond to the Motion to Change disputing Eleni's entitlement to support. Eleni lived continuously with her mother until she moved to Montreal to attend college in September of 2013. In Montreal Eleni lived with her maternal uncle while attending school and returned to her mother's home for holidays and the summer. Whether she lived at home with her mother or with her Uncle and his family in Montreal while attending school, the evidence is that Eleni relied on her mother for emotional and financial support. It is clear that at no point had Eleni withdrawn from parental control.

[12] On the date of the issuance of the Motion to Change Eleni was still a child entitled to child support.

(b) Has There Been a Change in Circumstances?

[13] Motions to change support are 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.

[14] The moving party on a motion to change must establish that there has been a change in circumstances within the meaning of the Child Support Guidelines (Guidelines) since the date of the original order. Paragraph 1 of Section 14 of the Guidelines provides that where, as in this case, the initial child support order was made in accordance with the Guidelines tables, any new circumstances which would result in a different amount of child support payable by the payor constitutes a change in circumstances within the meaning of section 37(2.1) of the Family Law Act.

[15] Eleni's attendance at a post-secondary education institution and the costs associated with same constitute a change in circumstances warranting a review of the father's child support obligation pursuant to section 37(2.1) of the Family Law Act.

(c) Is the Mother Entitled to a Retroactive Increase in Child Support for the Years of 2012 to 2016?

[16] The court has jurisdiction to order retroactive child support payments, and the principles set out by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, 2 S.C.R. 231 (D.B.S.) structure that discretion. In that decision the Court articulated two overarching principles governing claims for retroactive child support and retroactive increases in support: 1) Each parent has an obligation to insure that his/her child receives proper support in a timely manner; and 2) courts considering these claims must balance the payor's interest in the certainty of the status quo with the need for fairness and flexibility. At paragraph 133, the Court set out four factors to be considered in such claims:

1. Reason for the delay in bringing the claim;

2. Conduct of the payor parent;

3. Circumstances of the child; and,

4. Hardship that may be caused by a retroactive award.

[17] 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.

[18] The Court in D.B.S. held that if a retroactive award is appropriate, that it should usually commence on the date of effective notice, being the date when the recipient advised the payor that support should be paid or renegotiated. An earlier date may be appropriate if there is blameworthy conduct by the payor, but generally a retroactive award should not commence earlier than three years before formal notice was given. However, in cases of blameworthy conduct by the payor, an even earlier commencement date may be in order. The retroactive support analysis in D.B.S. equally applies to claims for retroactive section 7 expenses.

[19] At paragraph 106 of D.B.S., the Court defines blameworthy conduct as any conduct that privileges the payor parent's own interests over his or her children's right to an appropriate amount of support.

Reason for Delay in Bringing the Claim

[20] The mother's explanation for not bringing this proceeding sooner is as follows:

(a) The mother said she has had a very hard time providing for Eleni since the parties separated in 2006. It was very difficult for the mother to meet Eleni's and her needs with little to no financial support from the father who was not paying court ordered child support while having to fund litigation against him in two courts.

(b) The mother's evidence is that she was not aware that her prior lawyer had not made a claim for section 7 expenses in her Application but that she "always intended to pursue a claim against the Respondent for his contribution towards s. 7 expenses".

(c) The mother's evidence is that "It was not until we appeared before Justice Nevins at that motion [in 2015] that I learned there was an issue concerning my claim for contribution to s. 7 expenses (that they were not adequately pleaded in my initial application)".

(d) When Justice Nevins heard the mother's motion to enforce payment of arrears of child support, her claim for contribution by the father towards section 7 expenses incurred for Eleni was denied as the issue of section 7 expenses had never been raised and there had been no order requiring the father to contribute towards such expenses.

(e) The mother's evidence is that "I had not advanced my claim for s. 7 expenses previously as my limited financial resources were dedicated to pursuing the enforcement of my child support entitlement against the Respondent".

(f) Once the mother received an order releasing monies held in trust to satisfy the arrears of child support, "I then turned my focus to bringing a Motion to Change to seek payment of s. 7 expenses" and "It took me considerable time to compile all of the supporting documentation concerning my claim to s. 7 expenses, going back to 2010".

(g) The mother did not want to advance her claim for section 7 expenses if there were no funds against which she could collect an order. She said that she had to wait to determine what amount of money, if any, was left in trust after she received the lump sum ordered by Justice Nevins, before deciding whether to bring this Motion to Change.

[21] The mother has had indirect contact with the father regularly since 2006 due to the ongoing protracted litigation they were involved in, both in this court and in the Superior Court of Justice.

[22] The mother's delay in bringing this claim until June 2016 and after Eleni completed her education is problematic. The mother was in court before Justice Nevins in what amounted to an enforcement proceeding in 2015. Eleni was already pursuing her post-secondary education and the mother could have and should have properly brought her claim for contribution by the father towards section 7 expense at that time, before Eleni completed her education but she chose not to do so. Instead she waited over 4 years from the date Eleni commenced her post-secondary education to bring a Motion to Change.

[23] As the mother swore an affidavit on February 18, 2015, in support of an order for contribution by the father towards section 7 expenses, she had the ability to bring her claim before the court on notice to the father a year and a half earlier than she did. She was also in the position to put the father on notice that she expected him to contribute towards these expenses much earlier than she did. The significance of this choice will be addressed at a later point in this decision.

[24] The mother contradicts herself in her evidence stating that she always intended to pursue contribution towards section 7 expenses by the father while also deposing that she did not realize there was an issue with her claim for section 7 expenses until Justice Nevins identified it in 2015.

[25] The mother's explanation that after completing enforcement proceedings she turned her mind to pursuing section 7 expenses and that it took a while to collect the necessary documentation to substantiate the expenses is confusing. The mother already had the documentation as she requested an order from Justice Nevins in her motion heard on June 15, 2015, requiring the father to contribute towards section 7 expenses for the period of 2007 to 2014 and included in her claim the cost of the first year and a half of Eleni's post-secondary education. At Exhibit "B" to the mother's affidavit sworn February 18, 2015, are receipts substantiating her expenses going back to 2007, including the cost of Eleni's post-secondary education to the date of the affidavit, specifically school fees, transportation and cell phone.

[26] Clearly the mother had the necessary documentation to bring her claim earlier than she did.

[27] The mother's evidence that she did not want to bring a claim for contribution by the father towards section 7 expenses if she was unlikely to collect against an order is not a reasonable explanation for such a long delay. The mother is obliged to take the appropriate steps to bring her claim before the court if she is unable to secure the relief she is seeking through other means. The clock is ticking and she has an obligation to move the matter forward. She took a risk by waiting not only to commence this claim, but to even put the father on notice that she was seeking an increase in child support from him.

[28] Furthermore, in her affidavit sworn February 18, 2015, the mother advised the court that the arrears of child support plus interest owed to her totaled $116,000.00 and that the amount of monies being held in trust to secure child support was approximately $135,000.00. As the mother was seeking contribution by the father towards section 7 expenses in 2015, and an order that any amounts owed to her by the father for these expenses be paid out of the $135,000.00 being held in trust, she knew she could collect at least $19,000.00 in 2015; the difference between the $135,000.00 being held in trust and the estimated $116,000.00 the father owed in child support arrears plus interest. It must be presumed that the mother requested the order in 2015 as she believed she could in fact collect any amounts ordered, at least in part.

[29] While the court appreciates the difficulty the mother had providing for her daughter without contribution by the father, her evidence that she focused on enforcement proceedings to collect arrears of child support before pursing section 7 expenses is not logical as she was already represented by counsel and involved in litigation in this court in 2015 in which she requested contribution towards section 7 expenses. She just did not make the claim in the correct manner. Furthermore, she was able to commence this claim prior to receiving the large lump sum payment towards arrears of child support in September 2016.

[30] An additional issue for the court is the mother's failure to put the father on notice of her expectation that he pay increased child support until he was served with her Motion to Change in September 2016. Therefore, effective and formal notice of the mother's expectation that the father contribute towards Eleni's post-secondary education was given on September 26, 2016, the same date he was served with her Motion to Change.

[31] This is important to the court, as D.B.S. sets out that generally retroactive support orders should commence on the date of effective notice but not more than three years before there was formal notice unless there is blameworthy conduct by the payor that the court concludes justifies an earlier commencement date.

[32] If the court was to decline to make a retroactive order that predates the date of effective notice, the only option would be to dismiss the mother's Motion to Change as all of the section 7 expenses she is seeking contribution towards by the father were incurred prior to the date of effective notice, September 26, 2016.

Conduct of the Father

[33] The father has a long history of not paying court ordered child support for Eleni. Between December 2008 and April 2013, the father did not pay any child support at all and owed arrears of $66,632.88.

[34] When Eleni began her education in September 2013, the father owed the mother child support arrears of $69,043.45. When Eleni completed her education in July 2016, the father owed the mother arrears of child support of $101,407.72.

[35] On September 26, 2016, after receiving over $102,000.00 through the Family Responsibility Office, there were no arrears of child support owing by the father to the mother pursuant to the order of Justice Waldman dated April 6, 2009.

[36] The Statement of Arrears prepared by the Family Responsibility Office on February 16, 2018 demonstrates that on February 13, 2018, it stopped enforcement of the ongoing child support due to a terminating event and fixed child support arrears at zero.

[37] In support of her claim for a retroactive increase in child support, the mother relies heavily on the fact that the father has a dismal record of not paying child support, which she deposes caused her significant hardship; and, that this matter proceeded on a default basis as the father failed to serve and file a Response to the Motion to Change and sworn Financial Statement, and could possibly be earning a higher income.

[38] The father has paid $969.00 per month in child support pursuant to Justice Waldman's order up to and including July 2016, when Eleni was no longer entitled to child support. The Applicant asks the court not to disturb the order requiring the Respondent to pay $969.00 per month in table child support for Eleni while she was pursuing a post-secondary education as she was maintaining a home for Eleni in Toronto and still paying for other expenses for Eleni while she was at school.

[39] The mother asks the court to order the father to contribute retroactively, $18,532.00 towards the cost of Eleni's post-secondary education in addition to having paid monthly table child support of $969.00.

[40] The Applicant's evidence established that she paid a total of $26,906.66 towards the following post-secondary expenses for Eleni:

(a) Cost of the application to the post-secondary institution;

(b) Travel costs of Via Rail to and from school;

(c) Cell phone costs;

(d) College fees;

(e) Books;

(f) Room and Board;

(g) Eye Glasses; and,

(h) Extracurricular activities.

[41] On April 6, 2009, Justice Waldman imputed income to the father of $111,800.00 per year. The mother uses this as the father's income when calculating his proportionate share of the section 7 expenses. As set out in paragraph 39 of the Applicant's affidavit sworn August 21, 2017, the Respondent's share of the cost would be between 65.1% and 69.4% depending on the Applicant's income in each particular year, based on the presumptive proportion to income approach set out in subsection 7(2) of the Child Support Guidelines.

[42] In her calculations, the mother makes no deduction for any contribution by Eleni towards the cost of her post-secondary education. She also includes expenses such as a cell phone and extra-curricular activities which, arguably, may not be proper section 7 expenses, especially if Eleni is not contributing at all to the cost of her tuition, books and room and board while at school.

[43] Over the course of Eleni's post-secondary education, the father paid a total of $33,915.00 in child support. If the court deducts the sum the mother is requesting the court to order the father to contribute retroactively towards the cost of Eleni's post-secondary education, from the total amount of child support paid for Eleni while she was away at school, the mother was left with $15,383.00, or $439.51 per month for the 35 months Eleni pursued a post-secondary education.

[44] In determining if there has been blameworthy conduct justifying a retroactive award that predates effective notice, the court must consider whether the father paid child support to the mother in the range of what should have been paid for the child. Is the monthly amount of $439.51 an amount that appears appropriate on the facts of this case?

[45] Once Eleni turned 18 years of age, it was open to the court to find that the standard Guideline table approach of fixing child support for a child over the age of majority was not appropriate. This is often the case when a child over the age of 18 pursues a post-secondary education away from home 8 months a year.

[46] There is a presumption in favour of using the child support guideline table amount and the onus of showing that this approach is inappropriate is on the party so claiming. That being said, there is a large body of case law in which the courts have said that the standard approach to determining child support for an adult child away at school 8 months of the year is not appropriate.

[47] The mother's evidence is that Eleni only came home for major holidays and the summer. The Applicant maintained a two bedroom apartment while Eleni attended school away from home between 2013 and 2016. Her financial statement sworn June 3, 2016 discloses monthly rent of $1225.75. Other than cable and internet, which cost is intertwined with the mother's home phone, her cell phone and Eleni's cell phone, the Applicant's sworn financial statement discloses no other expenses associated with maintaining a home for Eleni.

[48] In addition to maintaining a room for Eleni, the Applicant includes on her sworn financial statement the cost of medicine and drugs, clothing and a cell phone for Eleni.

[49] When deciding if the evidence supports a conclusion that the father paid close to or in the range of the correct amount of child support between September 2013 and July 2016, the court considered the fact that the mother is requesting contribution towards Eleni's post-secondary education by the father without deducting any amount for contribution by Eleni.

[50] Section 7 and clause 3 (2) (b) of the Child Support Guidelines requires the court to consider whether the adult child is able to make a contribution to his or her own post-secondary education expenses. The child's post-secondary education expenses, used in this context, is a reference to the child's tuition, books, supplies and daily transportation to and from school in the case of a child living at home to attend university, and in the case of a child residing away from home, also includes residence and meal plan or equivalent.

[51] The court has the discretion to decide the amount the child should contribute towards his or her post-secondary education. The extent of the child's contribution depends upon the circumstances of the case. There is no standard formula.

[52] The mother's position is also that the father should contribute towards the cost of Eleni's post-secondary education in proportion to the parties' incomes. An order for contribution towards post-secondary education expenses by a parent 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.

[53] It appears on the evidence before the court that Eleni would be expected to contribute some amount towards the cost of her education given that she earned $4000.00 per year. Eleni's contribution would result in a reduction in the proposed proportionate share owed by the father.

[54] If the court were to adjust child support, it appears that on the evidence that the mother would not have been successful in obtaining an order requiring the father to pay $18,532.00 towards the cost of Eleni's post-secondary education and $969.00 per month in full table child support while she lived away most of the year to attend college. Were the father to pay table child support to the mother in addition to his proportionate share of the cost of Eleni attending college away from home, he in effect would be contributing twice towards his share of the cost of shelter, food, cell phone, transportation, and extracurricular activities for Eleni.

[55] Based on the evidence before the court, it appears as though the amount of child support paid by the father was a fair and reasonable amount and within the range a court would order including contribution towards Eleni's post-secondary education on a complete analysis of the facts.

Circumstances of the Child

[56] Eleni did not incur any debt to fund her post-secondary education. She did not contribute towards the cost of her education which was paid for entirely by her mother. The mother's evidence is that Eleni used the approximately $4000.00 she eared each summer on incidentals while away at school.

[57] The mother's argument that she has suffered hardship providing for Eleni is not relevant. The Court in D.B.S. cautioned against making retroactive awards that will solely compensate a recipient parent for hardship they experienced providing for the child. The court wrote, "hardship suffered by other family members (like recipient parents forced to make additional sacrifices) are irrelevant in determining whether retroactive support should be owed to the child" as child support is a right of the child and belongs to the child.

[58] There is no evidence that Eleni suffered any hardship or was denied or deprived of any opportunities available to her as a result of the father's failure to pay child support in a timely manner. Eleni was not disadvantaged as a result of the amount of child support the father was paying.

[59] As of the date of service of the mother's Motion to Change, there had been a terminating event with respect to ongoing child support and all of arrears of child support had been paid in full.

[60] Eleni has completed her post-secondary education and the mother has notified the Family Responsibility Office that the father's child support obligation has been terminated. It therefore stands to reason that Eleni would not benefit from a retroactive order increasing the father's child support obligation. This factor is a consequence of waiting too long to bring the claim and cannot be ignored.

Hardship That May Be Caused by a Retroactive Order

[61] The father has not presented any evidence to demonstrate that a retroactive order would cause hardship to him.

Conclusion

[62] The court has been entrusted with the discretion to order retroactive child support where appropriate. That discretion requires the court to engage in a meaningful and comprehensive analysis of all of the facts, even if the matter proceeds on a default basis as in this case.

[63] While it would be easy for the court to find that the father's nonpayment of child support for so many years justifies an order requiring the father to pay an increase in child support retroactive to 2012, such a knee jerk reaction would be punitive and while arguably appropriate punishment for a father who so grossly neglected his child support obligations, not necessarily correct in law.

[64] While the court acknowledges that case law exists in which the courts found the blameworthy conduct of the payor to be so egregious that a retroactive award was appropriate even where the child would not benefit from it, the court cannot reach the same conclusion on the evidence before it as it appears on the facts that the father has paid child support for Eleni in the appropriate range.

[65] The court find that a retroactive increase in child support in this case should not be granted based on the following facts:

(a) It appears on the facts of this case that the father has paid an appropriate amount of child support for Eleni;

(b) Eleni is no longer entitled to child support and it is likely she will not benefit from a retroactive increase in child support;

(c) Eleni's post-secondary education has been paid for in full by the mother;

(d) Eleni did not incur any debt to fund her post-secondary education;

(e) Eleni was not deprived of any opportunities or disadvantaged as a result of the order for child support that the mother is seeking to vary retroactively;

(f) The mother did not give the father notice of her expectation for him to contribute towards the cost of Eleni's post-secondary education until September 2016, two months after Eleni completed her education;

(g) While away at school, Eleni only returned home during the summer and for major holidays. She did not return home regularly throughout the school year. An order requiring the father to pay his proportionate share of the cost of Eleni's room and board while away at College and full table child support would result in the father paying double for these expenses; and,

(h) It is likely that the father would not have been obliged to pay his proportionate share of the cost of Eleni's post-secondary education, including room and board, and pay full table child support.

[66] While the father engaged in blameworthy conduct by not paying child support for years and such conduct in and of itself might justify the order being sought by the mother, in all of the circumstances of this case, the court cannot find that the pre-existing child support order was inadequate. To the contrary, based on the evidence, Justice Waldman's order requiring the father to pay child support of $969.00 per month was sufficient and appropriate to meet Eleni's needs while she completed her post-secondary education.

[67] For the reasons set out herein I am declining to make a retroactive order increasing child support and dismissing the mother's motion.

Order

[68] The mother's Motion to Change the child support of Justice Waldman dated April 6, 2009, is dismissed.

Dated: March 29, 2018

Justice Melanie Sager