Court File and Parties

Date: November 5, 2018

Court File No.: D10922/17

Ontario Court of Justice

Between:

Christine Ruby Anyumba Acting in Person Applicant

- and -

Jonathan Allany Keby Acting in Person Respondent

Raoul Lions, for the assignee, The City of Toronto

Heard: October 29, 2018

Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This trial was about the respondent's (the father's) child support obligations for the parties' 8-year-old daughter (the child).

[2] The applicant (the mother) asks to impute the father's annual income at $40,000 for the purpose of the child support calculation. She seeks a support order retroactive to July 1, 2014.[1]

[3] The mother assigned her interest in child support for the period August, 2015 to July, 2016 to the City of Toronto (the City), as she was in receipt of social assistance. The City asks to impute the father's annual income at $44,500 for this time period and supports the mother's claim for retroactive support.

[4] The father's position was that the court should order support between $200 and $250 each month – but only on an ongoing basis.

[5] The parties disagreed about how much child support the father has paid since July 1, 2014.

[6] The parties agreed to a focused hearing. The case management judge, Justice Melanie Sager, set filing timelines for the parties' trial affidavits and the father's updated sworn financial statement. The mother complied with the timelines – the father did not. The father claimed to have sent a trial affidavit to the mother, the City and the court. However, no material was filed by him and neither the mother nor the City received his trial affidavit. He did not present an updated financial statement, as ordered by Justice Sager.

[7] To ensure fairness the father was given the opportunity to present his evidence orally.

[8] The parties questioned each other and the City questioned the father.

[9] The issues for this court to determine are as follows:

a) What is the father's income for the purpose of the child support calculation, and in particular, should income be imputed to him?

b) Should the father be required to pay retroactive child support, and if so, when should the support obligation begin?

c) How much child support has the father paid to the mother since July 1, 2014?

Part Two – Background Facts

[10] The mother is 41 years old. The father is 57 years old.

[11] The parties never cohabited. They had a relationship that ended in 2011. They only had the one child together.

[12] The child has always lived with the mother.

[13] The father lives alone in Quebec. He married in Nigeria in 2015 and is attempting to sponsor his wife and young child to come to Canada.

[14] The father also has four adult children who do not live with him.

[15] The mother is presently working as a Logistics Coordinator and earns $40,000 annually.

[16] The father deposed that he was in school from 2011 to 2016 taking Urban Planning. He has worked since April, 2017 as an Uber driver and hopes to find work in the Alberta oil sands as a general labourer.

[17] The mother issued separate applications for custody and child support on July 11, 2017. It was anticipated that the child support application would be for a provisional order since the father resided in Quebec.[2]

[18] However, the father decided to contest both applications in Ontario. He filed an Answer/Claim, fully participated at each court appearance and at the trial. He attorned to Ontario as the jurisdiction for the determination of his child support obligations.[3]

[19] On February 7, 2018, the parties consented to an order by Justice Sager granting the mother final custody of the child. The father agreed to pay temporary child support of $200 each month, on a without prejudice basis, based on an imputed annual income of $18,857.

[20] On April 18, 2018, the parties consented to a final access order. The father also consented to an order to provide the mother and the City with specified financial disclosure.

[21] On August 14, 2018, Justice Sager organized the focused trial of the remaining support issues.

Part Three – The Father's Income

3.1 The Father's Evidence

[22] The father testified that he had no income from 2011 until 2016.

[23] The father deposed that he owned a restaurant that was losing money in 2010. He decided to close that restaurant and go back to school to upgrade his education. He said that he was in school from 2011 until 2016 taking Urban Planning to improve his ability to support his family. He said that he started work as an Uber driver in April, 2017. In the spring of 2018, he went to Edmonton for two months to take courses to be able to work in the oil sands industry. He said that he completed that course and is now a member of the union. However, since he is very junior in the union, he has only been called for two weeks of work. He has continued, he said, to work as an Uber driver. He said that he continues to look for more remunerative work.

[24] The father filed income tax returns for 2015 and 2016 that show no income. He said that he lived off student loans and gifts from family members.

[25] The father testified that he grosses between $700 and $900 a week as an Uber Driver. He said that Uber takes 25% off the top and then he has to pay his car expenses. He testified that he is netting between $400 and $500 each week, although sometimes it can be as high as $700 in a week.

[26] At trial, the father claimed that he has medical limitations that have prevented him from working in construction. He said that he is a "severely diabetic".

[27] The father submitted that the court should make a support order of between $200 and $250 each month. This would translate to an annual income of between $18,900 and $23,500 for the father pursuant to the Child Support Guidelines (the guidelines).[4]

[28] The father did not provide any evidence of his 2018 income. He also did not provide his 2017 income tax return or notice of assessment.

3.2 The Mother's Evidence

[29] The mother submitted that the father is earning, or has been capable of earning, at least $40,000 annually. The City placed the figure at closer to $44,500 annually.

[30] The mother's position is that the father has been deliberately unemployed or underemployed to avoid his child support obligations. She believes that the father has been capable of earning much more income than he has reported, based on his education, work experience and skills.

[31] The mother also submits that the father has not accurately reported his income – that he is earning unreported cash income. She says that this is reflected by his lifestyle.

[32] The mother said that every time the case comes to court, the father keeps changing his story about his work plans. She said that he has not provided adequate financial disclosure and asks that an adverse inference be drawn against him when assessing his income.

[33] The City agrees with the mother.

3.3 Legal Considerations

[34] Section 19 of the guidelines permits the court to impute income to a party if it finds that the party is earning or is capable of earning more income than they claim.

[35] 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 obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. C.A.).

[36] In Duffy v. Duffy, 2009 NLCA 48, the court sets out the following principles:

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

e) 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.

[37] The Ontario Court of Appeal in Drygala set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational or medical needs, or those of a child?

3. If not, what income is appropriately imputed?

[38] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

[39] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.

[40] The court stated in Drygala that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[41] In paragraphs 52 and 53 of Ibrahim v. Hilowie, 2018 ONCJ 726, Justice Robert Spence reviewed when it will be appropriate to defer or reduce support by virtue of a payor's reasonable educational needs as follows:

5.3: SUPPORT DEFERMENT DUE TO EDUCATION/RE-TRAINING

[52] Returning to the case of Drygala v. Pauli, supra, I cite the following, beginning at paragraph 38 of the court's reasons [my emphasis]:

Reasonable Educational Needs

[38] 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.

[39] There are two aspects to this stage of inquiry. The trial judge must first determine whether the educational needs are reasonable. This involves a consideration of the course of study. A spouse is not to be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations.

[40] But, s. 19(1)(a) speaks not only to the reasonableness of the spouse's educational needs. It also dictates that the trial judge determine what is required by virtue of those educational needs. The spouse has the burden of demonstrating that unemployment or under-employment is required by virtue of his or her reasonable educational needs. How many courses must be taken and when? How much time must be devoted in and out of the classroom to ensure continuation in the program? Are the academic demands such that the spouse is excused from pursuing part-time work? Could the program be completed over a longer period with the spouse taking fewer courses so that the spouse could obtain part-time employment? If the rigours of the program preclude part-time employment during the regular academic school year, is summer employment reasonably expected? Can the spouse take co-operative courses as part of the program and earn some income in that way? These are the types of considerations that go into determining what level of under-employment is required by the reasonable educational needs of a spouse.

[41] The burden of proof is upon the spouse pursuing education as he or she is the person with access to the requisite information. The spouse is in the best position to know the particular requirements and demands of his or her educational program. He or she will have information about the hours of study necessary to fulfill such requirements, including the appropriate preparation time. He or she is in the best position to show whether part-time employment can be reasonably obtained in light of these educational requirements.

[53] What I glean from that decision is that the burden is always on the non-paying parent to establish the reasonableness of his education decision. Unreasonable education decisions will be rejected by the court. See for example Carter v. Spracklin, 2012 ONCJ 193, [2012] O.J. No. 1533, and Eden v. Grondin, 2018 ONCJ 116.

[42] The payor must prove that any medical excuse for being underemployed is reasonable. See: Rilli v. Rilli, [2006] O.J. No. 4142 (SCJ.). 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, [2005] O.J. No. 190 (SCJ), and Stoangi v. Petersen, [2006] O.J. No. 2902 (SCJ).

[43] 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 (OCJ), paragraphs 140 and 141.

[44] The third question in Drygala is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances?" 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.

[45] A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See: Whelan v. O'Connor, [2006] O.J. No. 1660, (Ont. Fam. Ct.).

[46] Self-employed persons have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002), 31 R.F.L. 5th 88 (SCJ).

[47] The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, [2008] O.J. No. 3616 (SCJ); Maimone v. Maimone, [2009] O.J. No. 2140 (SCJ).

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

3.4 The Father's Credibility and Actual Income Since April 1, 2017

[49] The father was not a credible or reliable witness. His evidence about his income has changed throughout this case. He failed to provide complete disclosure despite court orders, and the financial disclosure that he provided did not support his version of his financial circumstances. He was unable to adequately explain how he has been supporting his lifestyle. Simply put, his numbers did not add up.

[50] In his October 17, 2017 financial statement, the father claimed that he was earning $1,250 each month ($15,000 annually). In his December 4, 2017 financial statement, he claimed that he was earning net income of $7,560 annually (his gross income being $22,800 annually).

[51] The amounts reported in these financial statements are significantly less than the father said that he was earning at trial ($400-$500 weekly, net of expenses – sometimes more).

[52] A review of the two bank accounts provided by the father for 2017 reveal significantly more income being deposited into his accounts than he reported in his financial statements. The father started working with Uber in April, 2017. His bank deposits for the period from April to October, 2017 in his CIBC account (7 months) are over $27,000.[5] This would project to about $46,300 over a 12-month period. The father acknowledged that the deposits from Uber are net of the $25% that constitute Uber's share of his revenues. In addition, there are deposits of $4,785 in the father's CIBC account up until the end of March, 2017 and over $1,800 in his Laurentian account throughout 2017 (about $355 being before April).

[53] These bank deposits reflect an income well in excess of the amounts reported by the father.[6]

[54] The father was unable to explain the source of a number of the bank deposits he was questioned about.

[55] On April 18, 2018, Justice Sager ordered the father to provide:

a) Proof of completion of his courses in the oil and gas industry;

b) A copy of his Equifax report if there is no charge;

c) Copies of his credit card statements for all credit card accounts in his name from January 2017 forward;

d) A job search list from the date of the completion of his courses to work in the gas and oil industry.

[56] The father filed his job search list at trial. He did not provide the balance of the disclosure ordered.

[57] On August 14, 2018, Justice Sager ordered the father to serve and file his trial affidavit and updated financial statement by October 22, 2018. He did not do this.

[58] The father filed no evidence about his 2018 income. He did not file a 2017 income tax return or notice of assessment as required.

[59] The court draws an adverse inference against the father due to his failure to comply with court orders to provide a complete and accurate picture of his financial circumstances.

[60] The father could not explain how he has supported his lifestyle. According to his December 4, 2017 financial statement, he has annual expenses of $38,171. He provided no evidence demonstrating a decrease in assets or increase in debts to support this expense level in the past 10 months. The logical inference is that he is earning sufficient money to pay these expenses.

[61] In addition to the expenses listed, the father has traveled to Nigeria to spend time with his wife and child (the last time in 2017) and he said that he sends them money on occasion. In the past two years he has also traveled to the United Arab Emirates, France and Kenya. He acknowledged that he has traveled to Alberta three times this year and once to Manitoba. He has come to the court appearances in Toronto.

[62] The father's representations about his income do not come anywhere close to supporting this lifestyle.

[63] The court agrees with the mother that the father deliberately did not provide a clear financial picture in an effort to avoid his support obligations.

[64] The court finds that it is more likely than not that the father has been earning $40,000 annually since April 1, 2017, when he started working as an Uber driver.

[65] The mother's request to impute the father's income at this level is very reasonable. This imputation of income does not even take into account a gross-up of the father's income, as he is declaring and paying tax on substantially less income than he is earning. Usually, income is grossed-up in these circumstances to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See: Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855 (SCJ).

[66] In this case, if the court had grossed-up the father's income, it would have been assessed at between $45,000 and $50,000 annually.

[67] The court will impute the father's annual income at $40,000 after April 1, 2017.

3.5 Should Income Be Imputed to the Father for the Period Prior to April 1, 2017?

[68] The court finds that the father has been deliberately unemployed or underemployed since at least July 1, 2014.

[69] In 2010, the father decided to close his restaurant. He filed no financial information to support his statement that the business was losing money. He admitted that he was capable of working, but said that he was "done with" taking low-paying jobs – he wanted to improve his earning ability.

[70] The father then made the decision to go back to school to take Urban Planning for 5 years instead of finding work. The issue is whether this was a reasonable decision.

[71] The court finds that this was not a reasonable decision for the following reasons:

a) The father was already 47 years old.

b) The child required a reasonable level of child support from the father at that time – not at some distant time in the future.

c) The father already had considerable job skills that would have allowed him to earn a reasonable level of income. His resume is impressive and includes the following qualifications:

i) He had over 10 years experience as a drafter in architectural design.

ii) He had over 5 years experience in architectural design.

iii) He had experience in planning, detailing, designing and coordinating projects in both the public and private sector.

iv) He has international employment experience.

v) He is multi-lingual.

vi) He received a certificate in Construction Health and Safety from College LaSalle in 2002.

vii) He received a certificate in Construction (Asbestos) in 2003 from the same College.

viii) He has training in Petroleum Safety and in First Aid.

ix) He managed a restaurant and catering company from 2006 until 2010.

x) He worked as a Flying System Specialist from 2005 to 2007.

xi) He worked in construction from 2002 to 2004.

xii) He has extensive computer skills.

[72] The father's career path was unrealistic. He took 5 years to complete the Urban Planning program while paying nominal child support. He has never worked in this field and there is no indication that he is ever likely to do so.

[73] The father was very qualified to work in construction. He chose not to. At trial, he claimed for the first time that he was unable to work in construction as he is a severe diabetic. His evidence was not credible. He provided no medical evidence in support or any evidence of his having followed medical recommendations to alleviate this health concern. Further, the father has sought reduced support so that he can establish himself as a general labourer in the oil sands – a job that will also require physical labour.

[74] The court might have had more sympathy for the father if he had taken a more balanced education path. He could have looked at a program that offered night classes, while he worked and supported his child. At the very least, he should have looked at a program where he could have worked significant part-time hours. Instead, he chose not to earn any income.

[75] Although it is unnecessary to make such a finding to impute income, it was evident to the court that the father has been unemployed or underemployed, without justification, to avoid his child support obligations.

[76] This leaves the question of how much income to impute to the father.

[77] At one point in the trial, the father stated that he was capable of earning $250,000 to $300,000 – he just wasn't earning that amount.

[78] Based on the father's age, health, work history, job skills and experience, the court finds that the mother's request to impute his income at $40,000 annually from July 1, 2014 is very fair.[7] The father should consider himself fortunate that the court is not imputing the higher income sought by the City.

Part Four – Retroactive Support

4.1 Legal Considerations

[79] 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.

[80] 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.

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

[82] The court should not hesitate to find a reasonable excuse for delay in the following circumstances: where the recipient spouse harbored justifiable fears that the payor parent would react vindictively to the application to the detriment of the family; where the recipient lacked the financial or emotional means to bring an application; or where the recipient was given inadequate legal advice (D.B.S., par. 101).

[83] The court should take an expansive view of what constitutes blameworthy behaviour. Blameworthy behaviour is anything that privileges the payor's own interests over the child's right to an appropriate amount of support (D.B.S., par. 106).

[84] 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).

[85] 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).

[86] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor's reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past (D.B.S. par.123).

[87] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 221 (Ont. C.A.).

[88] The application in this case was issued on July 11, 2017. The legal considerations set out in pars 79 to 87 apply to the period before that date.

4.2 Analysis

[89] The mother was a very credible and sympathetic witness.

[90] The mother testified that she constantly asked the father for child support after their relationship ended in 2011. The court accepts that this was the date of effective notice. She said that the father would frequently say that he couldn't afford to pay support, but hoped to be in a position to pay it soon. He would plead with her to be patient and send her small random payments.

[91] The mother said that she told the father that she would be content if he just sent her $50 each month to help her out – she didn't want to take him to court. The father would promise to send her money, but rarely followed through.

[92] The mother testified that in 2015, the father said he would go to Nigeria, sell his property there and pay her a large lump sum. She was even able to get her brother to obtain a discounted airfare for the father. However, on his return, she learned that he hadn't sold the land.

[93] The mother described that she hit her low point early in 2017. She became ill and was hospitalized. Payment of her sick benefits had been delayed. She asked the father to send her just $20 each month for the child's lunch money. The father refused. At that point, the mother reluctantly started the court application.

[94] The father has engaged in blameworthy behaviour. He has actively avoided paying appropriate child support.

[95] The child was significantly disadvantaged by the father's failure to pay adequate child support. The mother and child went on social assistance for 11 months. The mother explained how they were often short of food and she had to ask her friends for assistance. The mother said that she could not afford new clothes for the child or afford to put her in activities.

[96] A retroactive award will likely cause the father some hardship. He now has another young child and wife to support in Nigeria. However, this hardship can be ameliorated by having the payments made over a reasonable period of time.

[97] Balancing all of these considerations, the court finds that the mother is entitled to retroactive support. Further, the court finds that the mother's request to make support retroactive to July 1, 2014 is very fair.[8]

Part Five – Calculation of Support Owing and Payment

[98] The guidelines table amount for one child at an annual income of $40,000 was $365 monthly under the Quebec table until November 30, 2017. Since December 1, 2017, the table amount has been $382 monthly.

[99] The total support accrued under this order has been $19,549, calculated as follows:

July 1, 2014 – November 30, 2017 ($365 x 41 months) = $14,965 December 1, 2017 – November 5, 2018 ($382 x 12 months) = $4,584

Total owing: $19,549

[100] The mother assigned her support to the City for 11 months (August, 2015 to July, 2016). Accordingly, the total amount owing to the City is $4,015 (11 months x $365). The balance of $15,534 is owing to the mother.

[101] The next issue is the amount that the father should be credited for support paid since July 1, 2014.

[102] The father claimed that he has paid the mother between $38,000 and $40,000 since the child was born. His evidence was not credible. He had little evidence to support that he had paid support to the mother. He said that he gave her between $900 and $1,200 in 2014; between $3,500 and $4,000 in 2015; about $3,000 in 2016 and $2,000 in 2017. His own numbers didn't match up with the overall amount he claimed to have paid to her. One also wonders how he could have paid such large amounts to the mother when he was declaring no income from 2014 to 2016.

[103] The father claimed that he pre-paid child support in 2011 by giving the mother $6,500 for her school tuition. He did not provide evidence about this and the mother denied this. However, even if this was true, this payment would not have covered his child support obligation for the period from January 1, 2011 to July, 2014. The father will not receive any credit for this alleged payment.

[104] The mother's evidence that the father made sporadic payments was far more credible. The father acknowledged that the mother had asked him to pay her $50 each month. She wouldn't be doing this if the father had been making significant support payments to her, as he claimed.

[105] The father provided some of his bank account entries. These entries show e-transfers of money to the mother. A review of the records show the following annual transfers:

2014 – $330 2015 – No bank records provided 2016 – $445 ($260 before August, 2016) 2017 – $85

[106] The father will be credited with these amounts paid to the mother. They total $860. This is the best evidence of the support that he has paid to the mother. The sum of $260 will be credited to the amount owed to the City, as it was paid during the assignment period. The balance of $600 will be credited to the amount owed to the mother.

[107] The records of the Family Responsibility Office show that the father has also paid, pursuant to the temporary order, child support of $1,200 in 2018. The father will be credited with these payments, all with respect to support owed to the mother.

[108] The father's total credits are $2,060. The amount of $600 is credited towards the amount owed to the City, the balance to the amount owed to the mother.

[109] The total support owing by the father as of this date is $17,489 ($19,549 - $2,060).

[110] The amount owed to the mother is $14,074 ($15,534 - $1,460).

[111] The amount owed to the City is $3,415 ($4,015 - $600).

[112] The father will be permitted to pay these arrears over 5 years. This comes to about $291.48 each month (the court will round it off at $290). However, if the father is more than 30 days late in making any ongoing or arrears payment, the entire amount of arrears then owing shall immediately become due and payable.

Part Six – Conclusion

[113] A final order shall go as follows:

a) The total amount owed by the father for child support for the period from July 1, 2014 to date is $17,489 as calculated in these reasons for decision. The sum of $14,074 is owed to the mother. The sum of $3,415 is owed to the City.

b) The father shall pay the mother the guidelines table amount for one child, based on his imputed annual income of $40,000 of $382 each month, starting on December 1, 2018.

c) The father will be permitted to pay the child support arrears at the rate of $290 each month, starting on December 1, 2018. However, if the father is more than 30 days late in making any ongoing or arrears payment, the entire amount of arrears then owing shall immediately become due and payable.

d) Nothing in this order precludes the Director of the Family Responsibility Office from collecting arrears from any government source, such as HST or income tax returns, or any lottery or prize winnings.

e) The Director of the Family Responsibility Office is asked to amend its records in accordance with this order and to credit the father with any payments received after October 2, 2018.

f) A support deduction order shall issue.

g) The father shall provide the mother by June 30th each year, starting in 2019, with complete copies of both his income tax returns and notices of assessment.

[114] If either party or the assignee seeks their costs, they shall serve and file their written costs submissions by November 19, 2018. The other party will then have until December 3, 2018 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator's office.

Released: November 5, 2018

Justice S.B. Sherr

Footnotes

[1] This was the mother's request in her closing submissions. She asked to impute $50,000 annually to the father in her trial affidavit.

[2] The Province of Quebec requires a provisional order to be made by the reciprocating court before it makes an order pursuant to interjurisdictional support legislation.

[3] Accordingly, the child support claim was determined pursuant to the Family Law Act, not the Interjurisdictional Support Orders Act.

[4] This is estimated using the Quebec guidelines table amount for one child. Clause 3 (3) (a) of the guidelines sets out that the court is to apply the table amount for the province where the father ordinarily resided at the time of the support application. That province is Quebec.

[5] The father only provided bank account statements to the end of October, 2017.

[6] The court has taken into consideration that the father has expenses to maintain his vehicle.

[7] To be clear, this is the amount that would have been imputed to the father for child support purposes after April 1, 2017, even if the court had not made the finding that he was actually earning this level of income.

[8] This is approximately 3 years prior to when the mother gave the father formal notice of her claim – being the date of the application.