Court File and Parties

Date: September 23, 2019

Court File No.: D91887/16

Ontario Court of Justice

Between:

Aliya Tahir

Zhara Khedri, for the Applicant

Applicant

- and -

Muhammed Tahir Ali Khan

Acting in Person

Respondent

Heard: September 18-19, 2019

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This trial was about the applicant's (the mother's) motion to change the final child support order of Justice Robert Spence, dated October 24, 2017 (the support order) and the respondent's (the father's) motions to change the final custody order of Justice Spence dated July 17, 2017 (the custody order) and the final access order of Justice Spence dated April 24, 2018 (the access order).

[2] The mother has sole custody of the parties' five children (the children). The father exercises day access to the children pursuant to the access order. The father sought orders for joint custody and equal parenting time with the children in his motions to change.

[3] For oral reasons given at the end of the trial, the father's motions to change the custody order and the access order were dismissed. He failed to establish a material change in circumstances that affected or was likely to affect the best interests of the children.

[4] The support order provides that the father pay the mother the table amount of child support pursuant to the Child Support Guidelines (the guidelines), based on his 2016 income of $20,535. He was ordered to pay the mother $454 each month starting on August 1, 2017. He was also ordered to provide financial disclosure to the mother by April 17, 2018 (seven days before the return of the access issue that was still outstanding), together with his financial disclosure each year by June 1st.

[5] The mother seeks to increase child support retroactive to March 1, 2018 based on the father's actual income. She is prepared to permit the father to pay the arrears at $50 each month starting on September 1, 2021.

[6] The father asks that the mother's motion to change the support order be dismissed. In the alternative, he asks that his child support obligation be reduced on the basis of undue hardship pursuant to section 10 of the guidelines.

[7] Only the parties testified at trial. They both relied on their affidavits and financial statements filed for their direct evidence. The court permitted the father to give supplementary oral evidence. The parties cross-examined each other.

[8] The court reserved its decision on the support issue. This is its decision.

Part Two – Background Facts

[9] The mother is 39 years old. The father is 45 years old.

[10] The parties were married in 2005 in Pakistan. The father sponsored the mother to come to Canada in 2007 and the parties have lived in Canada since then.

[11] The parties have five children ranging in ages from four to thirteen years old.

[12] The parties separated in May 2016.

[13] The children have resided with the mother since the separation.

[14] The mother obtained an MBA degree in Pakistan. She has been a stay-at-home mother in Canada and has been on social assistance since the separation. Since 2013, she has occasionally worked as a lunch supervisor at the local school. She earns nominal income from this job.

[15] The father has a Bachelor's degree in Civil Engineering and a Bachelor of Science degree in Physics. He is presently working full-time as a drafter.

[16] The mother issued her original application for custody and child support on November 25, 2016. This application resulted in the three orders that the parties sought to change in this proceeding.

[17] The mother issued her motion to change the support order on January 28, 2019.

[18] The father issued his response to motion to change on April 9, 2019.

Part Three – Prospective Child Support

3.1 Table Support

[19] A support claimant is presumptively entitled to prospective support from the date of notice that a support claim is being pursued. See: MacKinnon v. MacKinnon, 75 O.R. (3d) 175 (C.A.), at para. 22.

[20] In this case, prospective support starts from January 28, 2019, when the mother issued her motion to change support.

[21] The father's 2019 income will be about $42,000.

[22] The mother is seeking the guidelines table amount of support from the father. She is not seeking a contribution towards special expenses pursuant to section 7 of the guidelines.

[23] The guidelines table amount of child support for 5 children based on the father's current income of $42,000 is $1,165 each month.

[24] The father asks that his child support obligation remain at $454 each month.

3.2 Legal Considerations

[25] Subsection 37(2.1) of the Family Law Act provides that in the case of an order for child support, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines, the court may vary the order, prospectively or retroactively.

[26] Section 1 of the guidelines sets out the objectives of the guidelines as follows:

(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

(d) to ensure consistent treatment of spouses and children who are in similar circumstances.

[27] The father is seeking a reduction in the guidelines table amount of support due to undue hardship. Undue hardship claims are governed by section 10 of the guidelines, which reads as follows:

Undue hardship

10. (1) On the application of either spouse a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

Circumstances that may cause undue hardship

(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include,

(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;

(b) the parent or spouse has unusually high expenses in relation to exercising access to a child;

(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is,

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;

(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;

(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

Standards of living must be considered

(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse.

Standards of living test

(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

Reasonable time

(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

Reasons

(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so.

[28] It is very difficult to make out a successful undue hardship claim under section 10 of the guidelines. There are three parts to the test:

1. The person making this claim must show that there are circumstances that could create undue hardship.

2. If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party's.

3. If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties.

See: Matthews v. Matthews, [2001] O.J. No. 876 (SCJ).

[29] The father must prove more than hardship. He must show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient. See: Hanmore v. Hanmore, 2000 ABCA 57.

[30] The father has the onus of providing adequate supporting documentation to prove his undue hardship claim. See: Van Gool v. Van Gool.

3.3 Analysis

[31] The court recognizes the reality in this case that there is not enough money to go around to properly support the parties and the children in two separate households. However, the parties have five children to support. Both of them will have to make sacrifices to do this.

[32] There has been a change in circumstances since the support order was made. The support order was based on an annual income of $20,535 for the father. He is now earning annual income of $42,000.

[33] The father claimed that there was no change in circumstances since he had been working at his present job for two months when the support order was made and he is earning the same income today.

[34] The court does not accept the father's argument. The support order was clear that the support obligation was based on the father's 2016 income. He had just started his new job and his 2017 income was still undetermined. The father did not make an undue hardship claim in the original application and there was no indication in the support order or the underlying consent that his support obligation was being reduced due to undue hardship. The support order also required the father to provide full financial disclosure seven days before the next court date, supporting the mother's position that the father's financial circumstances remained unclear – particularly since he had just started a new job and it was uncertain if it would continue, given his struggles in recent years in maintaining employment.

[35] The father based his undue hardship claim on two factors. One: that he has high access costs. And two: that he assumed responsibility for an unusually high level of debts reasonably incurred to support the mother and the children while they lived together.

[36] There was absolutely no merit to the father's claim that he has unusually high access costs. He exercises access on Saturdays for six hours. He claims high food costs because the access order requires that he feed the children lunch. However, it is expected that a parent who has the children for this period of time will feed them. He does not have to always take them out to eat. The father also says that he has paid for two cell phones for the children. This was his choice and is not a requirement for access. Lastly, the father claims that the children demand gifts on visits. This is not an unusual access cost. It is up to the father to determine what gifts he can afford to buy the children. It is not a basis to reduce child support.

[37] The father did incur significant debt both during and after the relationship as he struggled to maintain employment. He filed for bankruptcy in November 2018 and claimed $76,000 in debts. He was discharged from bankruptcy in August 2019.

[38] The father's debt obligations do not create an undue hardship with respect to prospective support. He is now a discharged bankrupt and has no debts other than a student loan that was incurred after the parties' separation. The father was paying the trustee in bankruptcy $200 each month prior to his discharge from bankruptcy in August, but this payment did not create an exceptional, excessive or disproportionate hardship.

[39] Even if the father had been able to establish that the debt obligations created undue hardship, his claim still fails because he did not meet his onus of demonstrating that he has a lower standard of living than the mother.

[40] The mother is living on social assistance, child tax benefits and child support. She earns between $50 and $100 each month from her part-time work. She is responsible for raising five children, which is in itself a full-time job. The father has limited access and involvement with the children.

[41] The mother and children live in a two-bedroom apartment with one bathroom for the six household members. The mother has no savings and no vehicle.

[42] The father earns annual income of $42,000. He has his own apartment and owns a vehicle. He has RRSPs (locked-in) of $24,000. He was able to travel to Pakistan in December 2017 on a holiday. He has no other support obligations. His remaining debt after bankruptcy is a student loan incurred after the parties separated.

[43] The father's claim of undue hardship is dismissed. He will be required to pay prospective child support based on the guidelines table amount of $1,165 each month starting on February 1, 2019.

Part Four – Retroactive Support

4.1 Positions of the Parties

[44] The mother seeks an increase in child support retroactive to March 1, 2018 based on the father's actual income. The father earned $42,149 in 2018 and will earn $42,000 in 2019.

[45] The father asks that the mother's claim for retroactive support be dismissed.

4.2 Legal Considerations

[46] 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.

[47] 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.

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

[49] 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).

[50] 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).

[51] 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).

[52] 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).

[53] 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: D.B.S., pars. 95 and 96; Titova v. Titov, 2012 ONCA 864, par. 37; Baldwin v. Funston, 2007 CarswellOnt 3168 (C.A.).

[54] 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; Connelly v. McGouran, 2007 ONCA 578.

4.3 Analysis

[55] The mother reasonably explained her delay in bringing her motion to change. She first raised the issue of an increase in support with the father on June 3, 2018 and sought the required financial disclosure from him. She followed up with a request for financial disclosure on June 29, 2018. The father failed to provide this disclosure. She asked him to participate in the Child Support Recalculation Service and he refused. When these reasonable efforts to adjust support failed, she obtained counsel and brought her motion to change in a timely manner.

[56] The mother alleged that the father exercised blameworthy conduct by failing to accurately report his 2017 income at the time of the support order. This was not the case. The father filed a financial statement and pay stub three weeks before the support order was made setting out the details of his new job.

[57] While the father's entire 2017 income was uncertain at the time of the support order the mother probably should have based the father's ongoing support obligation on the income he was actually earning in his new job. The father can't be blamed for paying support in accordance with the support order.

[58] However, the father did engage in blameworthy conduct when he unreasonably delayed in providing the mother with the financial disclosure required in the support order.

[59] The circumstances of the children have been disadvantaged by the father's failure to pay appropriate support. The children are living a subsistent lifestyle on social assistance. The payment of the appropriate guidelines table support amount would have significantly improved their standard of living.

[60] The last consideration is the hardship a retroactive order would cause the father. This is a different test from the undue hardship test described in section 10 of the guidelines; it is not as rigorous. It is an important factor in the court's holistic analysis in fairly attributing the child support obligations between the parties.

[61] A retroactive award will cause the father hardship. The guideline table amounts are very hard on payors at lower income levels who have many children – leaving them with very little money to support themselves. The court recognizes how expensive it is to live in Toronto and how difficult it will be for the father to pay just the table amount of support. However, the father has been significantly underpaying support for almost two years and his hardship can be addressed by permitting him to pay support arrears over a lengthy period of time.

[62] The date of effective notice in this case is June 3, 2018, when the mother raised the issue of increasing support. At that time, the father should have known that the amount of support he was paying was inadequate.

[63] Balancing all of these factors, the court will exercise its discretion and order that support be adjusted based on the father's actual income starting on July 1, 2018 – not the March 1, 2018 start date sought by the mother.

Part Five – Calculation of Arrears and Payment

[64] The father's guidelines table amount support obligation based on his 2018 income of $42,149 for the five children was $1,168 each month. The support adjustment in 2018 from July 1, 2018 is $4,284 ($1,168 – 454 x 6 months).

[65] The adjustment to support for 2019, based on the father's income of $42,000 is $6,399 ($1,165 – 454 x 9 months).

[66] In total, the sum of $10,683 shall be added to the father's support obligation ($4,284 plus $6,399).

[67] The mother recognizes the father's financial challenges and has taken the very generous position of deferring payment of arrears until September 1, 2021, to be paid at the rate of $50 each month. This more than addresses the hardship consideration discussed above. The court will make that order.

Part Six – Conclusion

[68] A final order shall go changing the support order as follows:

a) The father shall pay the mother the guidelines table amount of support for five children based on his 2018 income of $42,149, in the amount of $1,168 each month starting on July 1, 2018.

b) The father shall pay the mother the guidelines table amount of support for five children based on the father's 2019 income of $42,000, in the amount of $1,165 each month starting on January 1, 2019.

c) The changes to the support order will increase the father's child support by $10,683, as calculated in this decision. The Director of the Family Responsibility Office is asked to adjust its records accordingly.

[69] A final order shall also go on the following terms:

a) The father may pay the arrears created by this order at the rate of $50 each month, starting on September 1, 2021.

b) 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.

c) A support deduction order shall issue.

d) Paragraph 6 of the support order (annual financial disclosure) shall remain in full force and effect.

[70] The father's claim for undue hardship pursuant to section 10 of the guidelines is dismissed.

[71] If the mother seeks her costs of the motions to change, she shall serve and file her written costs submissions by October 11, 2019. The mother should include in her submissions her proposal for how costs should be paid. The father will then have until October 25, 2019 to respond. The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs.

[72] The costs submissions should be delivered to the trial coordinator's office on the second floor of the courthouse.

Released: September 23, 2019

Justice S.B. Sherr