CITATION: Simone v. Van Nuys, 2021 ONCJ 652

COURT FILE No.: DFO-426/01

DATE: 2021-12-13

ONTARIO COURT OF JUSTICE

BETWEEN:

LISA SIMONE

Applicant mother (Responding Party on Motion to Change)

— and —

RONALD EUGENE VAN NUYS

Respondent father (Moving Party on Motion to Change)

Before Justice Sheilagh O’Connell

Heard on November 18, 2019, February 3, 4, 5, November 23, 24, 2020,

January 20, April 21, May 5, 2021

Reasons for Judgment released on December 13, 2021

Patricia Smyth (until January 20, 2021) and then Acting in Person…. for the Applicant

The Respondent, Ronald Van Nuys …..……………………………….... Acting in Person

O’CONNELL, J.:

1: INTRODUCTION:

[1] This nine-day trial is about ongoing and retroactive child support and section 7 expenses for the parties’ 24-year-old son. The father seeks to terminate ongoing child support after Joshua graduated from high school and a refund of any overpayments. The mother seeks retroactive child support and section 7 expenses going back to 2007 and ongoing child support and section 7 expenses going forward until December of 2022.

[2] The first day of this trial was heard in November of 2019. It was adjourned to February of 2020 due to a scheduling conflict with a criminal trial. It was to be completed in March of 2020. However, it was administratively delayed for several months due to the pandemic. The trial resumed on November 23, 2020 and was to conclude on January 27, 2021. However, it was delayed again when the mother’s lawyer and the mother parted ways on January 22, 2021 following the completion of the mother’s closing arguments.

[3] On April 7, 2021, the mother brought a motion to re-open the trial to adduce additional evidence and to make further closing submissions, which was granted following a contested hearing. The trial concluded on May 5, 2021.

The Claims:

[4] The father brought an Amended Motion to Change the Final Order of Justice Ellen Murray, dated November 9, 2006 and specifically seeks the following orders:

1. An order terminating ongoing child support and section 7 expenses for the adult child Joshua, born […], 1997, with the effective date of termination being June of 2015, when Joshua graduated from high school.

2. An order for the refund of overpayments of child support since that time.

3. An order for the legal costs of his Motion to Change.

[5] The Applicant mother, Lisa Simone, in her response to the father’s Amended Motion to Change, has brought her own crossclaims and seeks the following orders in particular:

1. An order that ongoing child support and contribution to section 7 expenses for Joshua to continue until December of 2022.

2. An order for retroactive child support and retroactive contribution to section 7 expenses for Joshua going back to 2007, based on an underpayment of child support and section 7 expenses since that time.

3. An order that the father’s income for child support be imputed at $100,000.00 per annum for the period of 2007 to 2014 inclusive.

4. An order that the father’s income for child support for years following 2014 be based on the income information provided and converted to Canadian dollars based on the yearly exchange rates for each of those years.

5. An order for a declaration that the father is in contempt of the Order of Justice Murray dated August 23, 2007 for failing to provide annual financial disclosure.

6. An order for legal costs.

7. An order for the payment of pre-judgment interest.

[6] The parties agreed that their evidence in chief would be primarily by affidavit, subject to cross-examination. The court heard from four witnesses: both parties, the adult son Joshua, and Joshua’s family doctor, Dr. Joel Rosenberg.

[7] The documentary evidence in this trial was voluminous. The Court received and reviewed all of evidence carefully, including but not limited to all of the trial affidavits and accompanying exhibits, multiple sworn financial statements and attachments, documents briefs comprising Joshua’s medical records, school transcripts, financial disclosure, the entire case notes of the Family Responsibility Office in this matter, and medical reports/letters from Dr. Rosenberg and other doctors. There were 45 additional exhibits in addition to the mother’s document briefs of section 7 expenses and income calculations.

2: ISSUES BEFORE THE COURT:

[8] The main issues for me to decide are the following:

1. Is Joshua entitled to ongoing child support and to the contribution of section 7 expenses since he graduated from high school until the completion of his college program? If not, what is the termination date for child support?

2. If Joshua is entitled to ongoing support, what is the father’s reasonable contribution to his post-secondary expenses?

3. Is the father entitled to a refund of any overpayment of support if his child support obligation has terminated, and if so, for what amount?

4. Is the mother entitled to retroactive child support and section 7 expenses, and if so, to what date and for what amount?

5. Is there an entitlement to pre-judgment interest for either party?

3: THE FATHER (MOVING PARTY’S) POSITION:

[9] The father submits that he has faithfully paid ongoing child support for Joshua throughout his life despite being denied a relationship with him by the mother. He submits that Joshua has not been entitled to child support since he graduated from high school in June of 2015.

[10] Since 2015, Joshua has begun seven different programs of education and was not successful in completing any of these programs or in attending full-time if at all. He has demonstrated a repeated lack of ability to succeed at school until very recently when he started an online college program while at home during the pandemic. The father believes that the mother is helping him with his current program to ensure that the child support payments continue.

[11] The father disputes the mother’s claims that Joshua’s lung condition or health issues have precluded him from succeeding in postsecondary education or becoming independent for the entire duration from his graduation from high school in June 2015 to the present.

[12] The father further submits that the mother did not pursue any increase in his child support payments or contribution to Joshua’s section 7 expenses until he commenced this motion to change in 2018 seeking to terminate child support. It was only then that the mother brought her retroactive claims going back 13 years despite being aware of his income and how to contact him, repeatedly threatening to bring court proceedings over the years, and repeatedly harassing him at his employment and by other means in an attempt to humiliate and slander him.

[13] The father states that he provided his income disclosure and tax returns to the mother each year by ordinary mail. As early as 2007, the mother repeatedly told him that she was going back to court for more child support and he waited for her to do so. He continued to consistently pay his court ordered child support during that time.

[14] Although the father continues to pay child support pursuant to the 2006 final order pending the outcome of his motion to change, he submits that the child support should be terminated effective June of 2015 and that he be reimbursed any overpayment.

4: THE MOTHER (RESPONDING PARTY’S) POSITION:

[15] The mother disputes that she denied the father a relationship with Joshua. She states that the father chose not to have any more contact with Joshua after 2006. She states that he has not contacted his son since that time by any method and “walked away from Joshua” following the final order. She further denies all the father’s allegations of harassment.

[16] The mother submits that Joshua continues to be entitled to child support. Throughout his youth, Joshua has struggled with significant medical issues that have impacted his ability to achieve academic success particularly following his graduation from high school. Joshua suffers from a condition called “spontaneous pneumothorax”. He has had numerous trips to the emergency department for repeated lung collapses finally culminating in major surgery in June of 2018. Joshua’s health has been compromised for many years, and in particular since 2015.

[17] The mother asserts that despite his ongoing and persistent medical issues, Joshua had repeatedly tried to achieve success at college and is highly motivated to succeed academically. Joshua attempted to return to school in 2018 and was succeeding but in April of 2018 he suffered another lung collapse and needed a further period of recovery. In June of 2019 he engaged in online courses to obtain upgrading and returned to school on a full-time basis in January of 2020. He is now doing very well academically and is expected to graduate from his college program by December of 2022.

[18] The mother further submits that since 2007, she repeatedly gave the father written notice that she was seeking an increase in the monthly child support payable and repeatedly requested updated financial disclosure. The mother denies harassing the father. She states that the father consistently ignored her requests for contribution to Joshua’s section 7 expenses and failed to provide any financial disclosure. He refused to communicate with her and threatened her with criminal harassment charges.

[19] The mother asserts that the father did not provide any disclosure until he commenced this motion to change, at which time it was apparent that his income had very significantly increased since the 2006 child support order.

[20] The mother states that she did not commence court proceedings until the father started his motion to change because the father deliberately concealed his home address, moved from Ohio to Alabama without informing her and over the years took premeditated steps to evade service of any court proceedings so that she could not locate him. She further submits that despite numerous repeated requests over the years his refusal to provide her with updated financial disclosure also made it difficult to consider court proceedings.

[21] The mother was also involved in a car accident in 2009. She states that her serious injuries and her subsequent diagnosis of fibromyalgia and other surgeries also impacted her ability to go back to court. She was also dealing with Joshua’s health issues and involved in ongoing custody and support litigation regarding her daughter of another relationship.

[22] The mother prepared very detailed calculations and charts of the retroactive claims that she has made as well as her claims for ongoing child support, section 7 expenses, and interest claims. She has calculated that the father owes her retroactive child support of $54,296.00 and retroactive section 7 expenses of $20, 296.00, for a total of $75, 091.00. The mother is further seeking ongoing child support of $1,054.00 each month based on the father’s 2019 income and $611.00 each month of section 7 expenses contribution for a total of $1, 665.00 per month commencing December 1, 2020, to terminate on December 31, 2022. The mother is also seeking interest in the amount of $19, 971.30.[^1]

[23] The mother also denies the father’s claims that he paid child support consistently and submits that he paid little or no child support after Joshua was born until she applied to the court for child support and that he has continued to engage in blameworthy conduct for the past 24 years by either underpaying, not paying at all and breaching the final order to contribute to section 7 expenses.

5: BACKGROUND AND SUMMARY OF EVIDENCE:

[24] The father is 65 years old. He is an American citizen and has always lived in the United States. He currently lives in Knoxville, Tennessee with his wife, whom he married in 2014. His wife has a 23 year old daughter from a previous relationship, and she has lived with them for periods of time.

[25] The mother is 53 years old. She is a Canadian citizen and has always lived in Canada. The mother lives in Toronto with Joshua and a child of a subsequent relationship. The mother and her children live in a house shared with her parents.

[26] Joshua is the parties’ only child together and he is now 24 years old. The father has no other children. As noted, the mother has one younger daughter from another relationship. She is divorced from that child’s father.

[27] The parties met online and dated for approximately 1 to 2 years prior to Joshua’s birth[^2]. Throughout their relationship, the father was living in Ohio and the mother was living in Toronto. They saw each other approximately every other weekend. The father mostly visited Toronto, but the mother testified that she frequently visited the father in Ohio as well.

[28] The parties never lived together and ended their relationship before Joshua was born. It is the mother’s evidence that she terminated the relationship two weeks prior to Joshua’s birth. The mother testified that after Joshua was born, she attempted reconciliation with the father and moved to Ohio with Joshua to live with the father, however, she left after approximately one week. The father testified that this was a visit, not an attempt at reconciliation.

[29] The father was a police officer and Police Captain for the Fairborn Police Department in Ohio from 1980 to 2005. He retired as a Police Captain with a full pension in 2005 after 25 years of service, having made his way up the ranks to this position. Following his retirement, the father continued to work in various positions to supplement his pension income as follows:

1. February 2007 to July 2013: Office Deputy at the Greene County Sheriff’s Office, Ohio.

2. June 2007 to June 2010: Adjunct Instructor at ITT Technical College, Ohio.

3. July 2013 to July 2016: Loss Prevention and Safety Manager at Lowe’s, Alabama.

4. August 2016 to on or April 14, 2021: School Resource Officer for Lauderdale County Commission, Alabama.

[30] The father is now fully retired and assists his wife in caring for her elderly parents in Knoxville. He states that he also suffers from serious health issues, including high blood pressure, heart, and other issues. He receives a pension income of approximately $64, 945 USD or $81, 512.00 CAD, according to his most recent pension statement dated April 1, 2021. The father has recently sold his home in Alabama so that he and his wife could relocate to Knoxville, Tennessee to care for his wife’s elderly parents.

[31] This home was sold for $265,000.00 US dollars on December 14, 2020 after the last day of evidence in this trial, with a closing on February 2, 2021. This became a very contentious issue because the father did not disclose that he had listed or sold his property when the parties were scheduled to conclude the trial on January 20, 2021 until the mother’s counsel sought leave to cross-examine the father on this issue. The mother then sought leave to adduce additional evidence regarding the sale transaction and price.

[32] The mother was formerly trained and worked as a dental hygienist for approximately eight years but voluntarily resigned from that profession in approximately October of 2014. This also became a very contentious issue in this trial. The mother either resigned or surrendered her license with the regulatory body for dental hygienists for reasons unknown, although the father provided some evidence that she resigned rather than face a disciplinary hearing. The mother objected to this evidence being admissible in this trial. The mother is currently involved in litigation with the regulatory body according to her testimony, but refused to answer questions about this.

[33] Following her career as a dental hygienist, the mother then obtained a diploma as a Law Clerk in 2014 and subsequently a Certificate as a Court Transcriptionist. She completed her qualifications to become a paralegal in 2017 and is going through the licensing process. She has worked in security investigations for a hotel, as a law clerk for a number of law firms, and as a Court Registrar and court transcriptionist for the Ontario Superior Court of Justice.

[34] The mother was employed on an irregular temporary contract as a Registrar with the Superior Court of Justice however her contract ended with the Court in June of 2019. She was employed briefly as a law clerk for a law firm in 2020, but that position ended in August of 2020. At the time of the trial, the mother was unemployed and was receiving unemployment insurance and child tax benefits of approximately $32,151.00 annually, according to her sworn Financial Statement dated November 23, 2020.

[35] The mother commenced an application for custody and child support for Joshua in 2001. On January 17, 2003, the parties entered a consent final court order that provided custody to the mother and access to the father to “be reviewed in the future having regard to the child’s best interests and wishes.”

[36] The 2003 Final Order also provided that commencing October 1, 2002, the father pay child support to the mother in the amount of $646.44 per month, in accordance with the Child Support Guidelines and the father’s declared income of $71,000.00 CAD per year. Arrears were fixed at $6,500.00, to be paid at a rate of $100.00 per month and that the father would pay a further $100.00 per month for the child’s daycare expenses. Once the child was no longer eligible for daycare, the father would continue to pay the additional $100.00 towards his arrears of child support until paid in full.

[37] In 2005, the father brought his first motion to change the 2003 Final Order following his retirement from the Fairborn Police Department in that same year. The father was 49 years old at the time.

[38] On October 17, 2006, the parties entered into Final Minutes of Settlement resolving the child support issues in the father’s motion to change as follows:

1. “The Respondent [father] retired from his employment as a police officer in April 1, 2005. His current annual income from his pension is U.S. $42, 705. 24. This is the equivalent of CDN $47,830.00 (exchange rate 1.12).

2. The Respondent is paying the monthly table amount of child support to the Applicant in the amount of $646.44, pursuant to the [2003] Order of Justice Weagant. The table amount based on his current income, in accordance with the Child Support Guidelines of Ontario, would be $442.00. The parties have agreed however, that in consideration of the other terms of the Minutes of Settlement, the Respondent will continue to pay the sum of $646.44 per month as child support, which is the table amount that would be payable for a payor with an annual income of $71,000.00.

3. The Respondent may obtain part-time, or full-time employment in the future. The parties have agreed that his child support obligations will not increase beyond $646.44 per month, unless his total income, including his pension income, exceeds CDN $71,000.00.

4. The parties have agreed that the Respondent’s child support obligations are in good standing, and there are no arrears of child support owing by the Respondent to the Applicant of any nature or kind.

5. The parties have agreed to withdraw the enforcement of any Order of the Ontario Court of Justice from the Family Responsibility Office. They have also agreed that in the event the Applicant [mother] refiles the Order with FRO as a result of default in payment by the Respondent, then the Respondent will pay the re-filing fee for the Family Responsibility Office.

6. The Respondent has recently had access to Joshua, in agreement with the Applicant, and the parties wish to make provisions for future access.”

[39] These Minutes of Settlement were incorporated into the Final Order of Justice Ellen Murray, dated November 9, 2006 as follows:

1. The Order of Justice Weagant shall be varied to provide as follows:

a. The [father] shall have reasonable access to the child, such access to be arranged by the parties.

b. Commencing August 1, 2006, the father shall pay monthly support to the mother in the amount of $646.44 per month, based on an imputed income of $71,000.00.

c. Any arrears of child support or any amounts otherwise owing to the mother by the father pursuant to Justice Weagant’s Order are forever rescinded and discharged.

d. The father shall contribute to the reasonable and extraordinary expenses of the child including daycare costs, extra-curricular activities, and medical and dental expenses not covered by a plan of insurance, in accordance with the Child Support Guidelines.

e. The father shall provide the mother with his income tax return by May 30^th in each year starting in 2007.

[40] After the final order was reached, the father testified that he never “walked away” from Joshua. He acknowledged that his final contact with Joshua was in October of 2006 after, according to the father, Joshua had behaved badly on a few visits. The father believed that Joshua had serious behavioural problems and possibly ADHD, but the mother did not agree. The parties had an argument about this and following a visit in early October of 2006, the father left and did not have any further visits with Joshua. The father testified that even though that was his last contact with Joshua, he still tried after that time to arrange visits, but the mother always had an excuse and refused his requests. He testified that he stopped trying at a certain point because the mother would not have a civil conversation with him.

[41] The mother denies these allegations and states that the father simply “walked away” from Joshua.

The Father’s Income and Events since the 2006 Final Order:

[42] Since the 2006 Final Order, the parties mainly agree on the father’s reported income between 2007 and 2018, although there are some differences in a number of years.

[43] The father reports his income as follows since the 2006 Final Order[^3]:

Total Income each year (USD)

Total Income (CAD) with Exchange Rate as of December 30^th of each year

2007: $75,000

$73,500 (.98 Conversion rate)

2008: $95,693

$117,702 (1.23 Conversion)

2009: $107,270

$112,633.50 (1.05 Conversion)

2010: $93,170

$93,170 (1.00 Conversion)

2011: $92,458

$94,307 (1.02 Conversion)

2012: $96,639

$95,672 (.99 Conversion)

2013: $93,877

$100,448.39 (1.07 Conversion)

2014: $86,354

$100,170.64 (1.16 Conversion)

2015: $88,193

$122,588.27 (1.39 Conversion)

2016: $89,234

$120,465.90 (1.35 Conversion)

2017: $79,915

$99,893.75 (1.25 Conversion)

2018: $78,726

$107, 067.36 (1.36 Conversion)

2019: $78, 726[^4]

$107, 067. 36 (1.36 Conversion)

[44]

[45] In 2020, the father testified that he earned a total income of $75, 852.00 USD or $98, 607.00[^5]. This amount included his pension income and his income as a school resource officer in Alabama, which he testified decreased during Covid.

[46] As noted earlier, the father resigned as a school resource officer on or about April 14, 2021 after he and his wife sold their home in Alabama and moved to Tennessee to care for her parents. The father also gave evidence that he suffers from serious health issues including high blood pressure, heart problems, and other issues. He will no longer continue working.

[47] Since 2021, his current annual income is solely his pension from the Ohio Police Department in the amount of $64, 945 USD or $81, 181.00 CAD.

[48] Based on her review of the father’s US tax returns, the mother states that there are additional amounts of income in some years that the father did not include in the above chart. For example, in 2011, the father acknowledged receiving $6,065 from the sale of some stocks which he testified he used to do a roofing repair on his home. In 2014, the father cashed out some of his deferred pension and stocks in the total amount of $4, 457 to purchase his home in Alabama and did so again in 2015. In 2016, the father again cashed in some stocks in the amount of $3, 567 and an additional amount of deferred compensation for what he testified were further home improvements. He did not consider any of these amounts earned income for child support purposes.

[49] Furthermore, regarding the calculation of the exchange rate, the father has taken the exchange rate as posted on December 31^st of each year and the mother has used the average annual exchange rate for each year. This accounts for further discrepancies in the calculations, although not significant.

[50] From 2007 to 2018, the father continued to pay child support in the amount of $646.44. There were two periods of time when he did not make the monthly payments, according to the FRO Statement of Arrears filed: 1) from approximately March to November of 2016, when he states that he was waiting for his child support to be registered for enforcement by the Alabama agency following his relocation there; and 2) from approximately July 2017 to March of 2018 when he states that an Alabama court mistakenly terminated his child support obligation before it was reinstated.

[51] On both of these occasions, the father testified that he was advised by his lawyer not to make any voluntary payments and to wait until the Alabama enforcement agency started enforcement following his move from Ohio and following the error in terminating the Ontario order by the Alabama court. The father also testified that he was unaware that the Alabama court would terminate the Order as soon as Joshua turned 18 based on the Alabama law of emancipation, even though he was the applicant in the request to terminate the Ontario order.

[52] However, it is not disputed that all payments were eventually made in two lump sum amounts, and the father was not in arrears of the basic monthly table amount stipulated in the 2006 Order when he brought the matter back to Court in 2018 to terminate child support following Joshua’s graduation from high school.

[53] Based on the table amounts under the Child Support Guidelines for basic child support and the father’s reported income, by the father’s own calculation, he underpaid child support between 2007 and 2018 by approximately $37,703.00. The mother’s calculation for the same period is $44, 490.00 and is based on the additional income she states that the father received for some of those years, as well as a different calculation for the exchange rate.

[54] The father testified that he was unaware that the child support amounts for each of those years was based on his income converted to Canadian dollars. He testified that his lawyer at the time did not explain to him that his child support obligation would increase when his income exceeded $71,000.00 Canadian. He thought that the $71,000 was in US dollars. He did not recall signing the Minutes of Settlement. He states that this is why he did not think that he was significant underpaying child support following the 2006 Order.

[55] It is also not disputed that the father did not contribute to any of the child’s section 7 expenses following the 2006 Final Order. The father acknowledged that he did not pay any section 7 expenses. According to the father, the mother repeatedly demanded section 7 expenses over the years without ever consulting him.

[56] He testified that he could not communicate with the mother because of what he described as her ongoing harassment. He found the tone of her communication “demeaning, insulting and accusatory” and “relentlessly exhausting”.

[57] Furthermore, the father further testified that did not agree with many of the section 7 expenses that the mother had listed in the early correspondence that he did review.

[58] The father denies failing to provide his annual financial disclosure in accordance with the provisions of the 2006 Final Order. It is his evidence that every year he mailed a copy of his tax return to the mother via the US Postal Service. He did not send it by registered mail nor does he have any proof that he did it. He testified that it did not occur to him to do this because he did not expect this to be a contested fact.

[59] Furthermore, when the father worked at the Greene County Sheriff’s office, his salary was public information and accessible. It is not disputed by the mother that by at least January 31, 2012, she had obtained the father’s income from Greene County for the years 2007 and onwards.

[60] The father further testified that since the 2006 Order, the mother repeatedly threatened him by email, through letters to his employment or through different counsel that she was taking him back to court. He waited for her to do so. The father testified that after her repeated threats to return to court by her or her counsel, he assumed that by not going back to court, the mother was fine with their arrangement.

[61] The father did not believe that it was his obligation to voluntarily increase or adjust his child support payments once his income increased. He testified that in the United States, if the payor’s income goes up, then it is up to the other party to take the payor back to court. The mother kept telling him that she was taking him back to court and he kept waiting for her to do that. He testified that he was not advised by his Canadian lawyers to voluntarily increase or adjust his child support.

[62] In his testimony, the father acknowledged eventually ignoring much of the correspondence that came from the mother. He stopped all communication with her and ignored her letters, and only reviewed some emails. He testified that he would only review and respond to official correspondence from the Court or enforcement agencies and any letters to his employment. He found the mother’s letters to him and his employers slanderous, threatening and harassing.

[63] On November 26, 2009, the mother faxed a 2-page letter to the father at his employment at the Greene County Sheriff’s Office entitled, “Failure to Comply with Ontario Family Court Order on November 9, 2006” on the Cover Sheet. The letter states that the father has failed to comply with the Final Order by failing to provide his annual income disclosure for the past three years and failing to contribute to the section 7 expenses for Joshua. The letter sets out detailed personal information regarding the parties’ court proceedings. The mother demands that the father must immediately provide copies of his 2006, 2007, and 2008 genuine, sworn and filed tax returns and contribute to a detailed list of section 7 expenses in the letter. The father is warned to “govern himself accordingly” and that if he fails to respond and immediately comply with the Order, the mother, “will not hesitate to return this matter to court” in which she will seek the “re-evaluation of child support and section 7 expenses, among other relied.”

[64] On or about February 28, 2012, in addition to several other emails from the mother or her counsel to the father following the November 2009 letter to his employment, the mother then faxed another letter to the Greene County Sherriff’s office. This three paged single-spaced letter is addressed directly to the Greene County sheriff, the father’s employer, in which the mother provides very detailed and confidential information about the family court proceedings from her perspective. She describes the father in a very critical manner, as someone who is in “wilful and flagrant contempt” of a court order, who behaves like a “deadbeat Dad”, and who is “morally and legally bankrupt”, among other descriptors.

[65] In this letter to the Greene County sheriff, the mother states that she felt compelled to disclose and express this “unjust travesty” to the sheriff because it is “grossly reprehensible that the father has any form of law enforcement authority, when he himself has flagrantly engaged in, and remained in contempt of a court order, for the purpose of hiding his income and evading proper child support.”

[66] In the same letter, the mother seeks additional financial disclosure from the Greene County Sheriff’s office and advises that she is “now preparing to return the matter to court.” She further states that she will move to subpoena the Greene County Sheriff’s Office “to testify under oath about the father’s ability to receive communications via this office.”

[67] This letter was brought to the father’s attention and prompted the father to retain a lawyer in Ohio to send the mother a “cease and desist” letter from harassing him at his place of employment. This letter was sent to the mother on March 27, 2012.

[68] On April 3, 2012, the mother responded to the letter from the father’s Ohio lawyer, and advised him that she will be reviewing his letter with a lawyer and that “any further letters threatening me with criminal action will result in a grievance being filed against you with the Office of Disciplinary Counsel of the Supreme Court of Ohio” and to “please govern yourself accordingly, pursuant to the Ohio Rules of Professional Conduct and Code of Ethics.” The mother further advised the lawyer that the father “will be served with court documents in due course.”

[69] The mother continued to send letters either from her lawyer or herself threatening court action. On July 23, 2015, among further correspondence, the mother sent a further letter to the father’s new place of employment at Lowe’s in Alabama, where the father was now working as a Loss Prevention and Safety Specialist. In that letter the mother again advised the father that he had failed to comply with the Final Order and stated, “As stated on numerous occasions, you can work with me or we can litigate it in the courts…Should we proceed on my Motion, I will be seeking to go back to the date of our last Order, in addition to seeking my costs on a full indemnity basis.”

[70] The mother acknowledged sending all of the above correspondence. She acknowledges that she was very angry and upset. It is the mother’s evidence that prior to the 2006 Final Order, there was a long history of non-payment and evasion of child support by the father. The mother gave lengthy evidence in this trial about the father’s payment history prior to the 2006 Order. It is the mother’s evidence that the father paid no child support from Joshua’s birth until September of 1999 and that he steadily ignored her written and verbal requests for child support. The father did not start to make voluntarily payments of $500.00 per month until October of 1999, when Joshua was approximately two years old.

[71] The mother testified that when she commenced her first application for child support in 2000, she agreed to a final order of monthly ongoing support of $646.64 and only $6,500.00 in retroactive support even though the father owed $28,000 in arrears. She stated that this was because she could not afford to retain a private lawyer and only had legal aid and time was running out on the certificate.

[72] In 2005 when the father brought his first motion to change, it is the mother’s evidence that she again very reluctantly agreed to forego the further arrears that the father had accumulated because she was in extreme financial hardship and that the father threatened that he would “see to it” that Joshua would go to Ohio whether she liked it or not. She deposed that she agreed to rescind the arrears on condition that the father would begin to contribute to Joshua’s section 7 expenses going forward and to pay four months of child support that he had cut off from April to July of 2005.

[73] The mother testified that following the 2006 Final Order the father immediately started to breach its conditions by failing to provide his annual financials, failing to increase his child support when his income exceeded $71,000.00 and refusing to contribute to Joshua’s section 7 expenses.

[74] The mother acknowledges that she repeatedly contacted the father either verbally or in writing regarding his alleged breaches of the 2006 Order and made countless consistent attempts to contact him via his Canadian lawyer. She acknowledged advising the father as early as 2007 that she was planning on taking the matter back to court.

[75] The mother has the following explanations for her delay in seeking the increases in child support and the section 7 expenses until she responded to the father’s motion to change to terminate Joshua’s support, approximately 12 years later:

1. It is the mother’s evidence that although she knew where the father lived in Ohio prior to the court resolution reached in 2006, after that time, she was only communicating with the father’s Canadian lawyer. When the father’s lawyer ended communication on the father’s instructions, she states that she had no way of delivering court documents to the father. She states that the only contact information that she had for the father was his email address. It is the mother’s evidence that the father evaded all attempts by her to locate him and she did not know where he was living to serve him. The father ignored her communication and refused to respond to her.

2. In 2012, when she tried to deliver documents to the father’s Ohio lawyer by registered mail, the letter came back undeliverable because the Ohio lawyer refused to accept the documents from her.

3. In July of 2013, the mother learned that the father had terminated his employment at Greene County Sheriff’s Office, sold his home and left the state of Ohio. The mother stated that she had no way of ascertaining his whereabouts after that time and she did not learn that the father had remarried and relocated to Alabama and until late 2014. She learned that the father had obtained new employment at Lowe’s in early 2015. She repeatedly wrote to the father on Facebook seeking an address for service.

4. According to the mother, the father was doing everything in his power to avoid service and to avoid detection. She was also concerned abut getting the right address given the father’s lawyer had threatened her with criminal harassment and defamation.

5. In 2016, when the father retained the same Toronto law firm that he had retained previously, the mother contacted the mother’s new lawyer at the firm in April of 2017 to ascertain whether she would accept service of the mother’s motion to change. There was initially no response and then a refusal to accept service.

[76] In addition to the above evidence, the mother gave evidence that the following factors also caused her delay in bringing the father back to court for over 12 years:

1. In 2007, the mother had separated from her ex-husband and was involved in high conflict litigation regarding her younger daughter and was dealing with those court issues.

2. The mother was facing extreme financial hardship because of her separation from her husband and was waiting to obtain a lawyer through legal aid.

3. The mother did not know what the father’s income was because he failed to provide any financial disclosure pursuant to the Final Order. The mother testified that she went to great lengths to find this information before deciding to proceed with court.

4. In the spring of 2009, the mother was moving into a new home with her children and building a business as a dental hygienist. In October of 2009, the mother was in a motor vehicle accident. Her stopped vehicle was hit from behind by another moving vehicle and she sustained several soft tissue issues including whiplash and broken toes. As a result of her accident, the mother was unable to build her practice as a dental hygienist and had to voluntarily retire. She was forced to sell her home.

5. In 2010, due to the stress of two highly contested family court matters and her injured state, the mother’s health rapidly declined, she was in constant pain and required numerous hospital visits, she could not walk and was basically non-functional. She was diagnosed with Fibromyalgia, a chromic pain condition. The mother testified that she was unable to walk or move for a period of five weeks and that her mother came to look after her and the children.

6. In 2011 and 2012, after significant efforts, the mother continued to gather detailed information about the father’s income. It is the mother’s evidence testified that she was ready to take the father back to court then but was again involved in difficult family court litigation with her other child’s father. Joshua was also starting to experience significant health issues in 2013. The mother was also in a new relationship.

7. In 2013, despite her health challenges and Joshua’s heath challenges, the mother returned to school as she could no longer work as a dental hygienist. She began the Accelerated Law Clerk Program through Seneca College and gradated with Honours.

The Father’s Motion to Change Currently before the Court:

[77] In 2018, the father brought this second motion to change following Joshua’s 18^th birthday and graduation from high school. The father testified that following Joshua’s graduation from high school, he repeatedly sought proof through his Canadian counsel that Joshua was enrolled in a full-time post-secondary education program. It is the father’s evidence that the mother refused to provide this information to his counsel and to the Family Responsibility Office and obfuscated at every turn.

[78] The father’s Canadian lawyer corresponded with the mother on several occasions before he finally brought this motion to change. The father testified that when neither his counsel nor FRO could get the mother to confirm Joshua’s enrolment in college after he graduated from high school, he brought this motion to terminate the child support order.

The Mother’s Claim for Section 7 Expenses:

[79] According to the expense charts dating back to 2006 prepared by the mother and produced at this trial, the mother calculated that Joshua’s section 7 expenses from 2006 to 2020 totalled approximately $27, 482, 83 and that the father’s contribution should have been approximately $25, 108.00.

[80] The expenses include the following according to the mother’s very detailed charts and receipts dating back to 2006: swimming lessons, karate, basketball, soccer, tennis, guitar and drum lessons, music lesson books, guitar amp rental, bible study group, day camps, school supplies, bike, cub scout uniforms, school backpack, school uniforms, school trip deposit, reading program, soccer shoes, soccer guards, soccer uniform, dental hygiene treatment, eye glasses, allergy epi-pens, chiropodist, medic alert bracelet, contact lenses, driving school course, high school convocation fees, eye frames, Seneca College tuition and post-secondary expenses, George Brown college tuition and post-secondary expenses, vision examinations, ambulance fees, medications, prescriptions, Rx medication, counselling sessions, acupuncture, dental assessment, dental restoration, wisdom teeth, physiotherapy, and proposed orthodontic expenses, among other miscellaneous expenses.

[81] The mother acknowledges that she did not have any discussions with the father in advance of paying for these expenses, but instead sent him the cost of each afterwards, except for Joshua’s orthodontic expense. She testified that as she was given sole custody, she did make the decisions to incur the expenses and then sought contribution, but the father simply ignored her.

Joshua:

[82] Joshua is now 24 years old. He graduated from high school in June of 2015 at the age of 18. He is currently a college student and is enrolled in Environmental Technology, which is a three-year program at Seneca College. He expects to graduate from this program in 2022.

[83] Joshua testified in this trial and was cross-examined by his father.

[84] Joshua has very little memory of this father. He recalls meeting him when he was about nine years of age. Prior to meeting him, he recalls being told by a social worker and his parents that he would start having regular visits with his father. He recalls having one or two visits with his father at that time and that his father seemed angry with him. After the last visit, his father did not come back to see him. Since that time, he had not seen his father or had contact with him until this trial when he was cross-examined by him.

[85] Joshua has struggled with physical health problems. He had moderate to severe asthma as a child resulting in many hospital visits and regular medication. In addition to asthma, he described often complaining of periods of shortness of breath, extreme fatigue, and pain in his left shoulder. These symptoms started to get worse when he was a teenager causing him to stop playing sports and participating in physical activities.

[86] Joshua underwent many chest x-rays and examinations, but there was no indication of the cause of these symptoms until 2017. In 2016, the symptoms became so severe that Joshua attended the hospital emergency department, as he was suffering from fatigue and pain and had difficulty leaving the house or focusing on post-secondary education and employment. He continued to undergo testing.

[87] In April of 2017, Joshua was diagnosed with a condition known as “spontaneous pneumothorax”, which is the sudden onset of a collapsed lung without any known cause. In May of 2017, Joshua was rushed to the hospital due to severe symptoms and it was determined that his left lung had collapsed. He underwent emergency thoracic surgery involving a chest tube insertion and was hospitalized.

[88] Joshua’s hospital and medical records were filed as an exhibit in these proceedings. In 2017 and 2018, Joshua attended hospital emergency on many occasions following his surgery because he suffered repeated collapses of his left lung. He continued to suffer from debilitating pain in his left shoulder blade, shortness of breath, heart palpitations, extreme fatigue, and the inability to concentrate. He also experienced significant anxiety due to his symptoms.

[89] On June 26, 2018, Joshua underwent a second emergency lung surgery due to the frequency of the collapses. According to the medical records, and not disputed, he underwent a bullectomy and other surgical procedures to re-attach the left lung and reduce future collapse.

[90] After the surgery it was discovered that Joshua had significant scar tissue in his chest and left lung area which indicated that he had likely been suffering from lung collapses for several years undetected.

[91] Dr. Rosenberg, Joshua’s family doctor testified in these proceedings. He has been Joshua’s doctor since 2017 and has been following and monitoring his recovery. His C.V. was filed in this proceeding as well as his medical report, dated November 13, 2018. He is not an expert in thoracic surgery but has monitored Joshua and is aware of his surgeries, the most recent surgery in 2018 performed by Dr. Robert Zeldin, a thoracic surgeon.

[92] Dr. Rosenberg testified that he has seen Joshua on many occasions since 2017 and has monitored his health. He corroborated the numerous physical symptoms that Joshua described. Dr. Rosenberg’s medical records and clinical notes were produced and introduced at trial. Between 2017 and June of 2019, Joshua had approximately 37 medical appointments with Dr. Rosenberg and well over 35 visits to hospital emergency at Michael Garron and Toronto General hospitals.

[93] Dr. Rosenberg testified that following Joshua’s surgery in 2018, which he described as a major surgery, it would take at least one year for Joshua to return to his normal level of function. He continued to suffer episodes of light headedness, shortness of breath, pain, extreme fatigue, and understandable anxiety. Dr. Rosenberg described Joshua as an anxious young man, but that this was understandable because he was worried about future lung collapses. He testified that it could take several months to at least one year from his surgery to get back to his normal state.

[94] Currently since the 2018 surgery, his condition has improved, particularly for his left lung, however, in February of 2019, Joshua contracted whooping cough (pertussis) which was exacerbated by his asthma and his lung condition, resulting in further emergency visits. In April of 2019, Joshua suffered a minor collapse of his right lung. Dr. Rosenberg testified that based on Joshua’s history of pneumothorax, this was the first time that he experienced it in the right lung. The left lung has improved significantly since the surgery, but there is a possibility it could re-occur in the right lung.

Joshua’s Post-Secondary Education:

[95] In June of 2015, Joshua graduated from high school. Joshua’s official transcripts from Seneca College and George Brown College were entered as exhibits in this trial.

[96] In the Fall of 2015, Joshua started the Environmental Technology Program at Seneca College. Joshua failed 3 out of 6 courses and received a D+, B+ and C in the other courses. Joshua described a lot of physical activity involved with this program. He was struggling with his symptoms and had a difficult time focusing.

[97] On January 19, 2016, Joshua withdrew from the Environmental Technology program due to his physical symptoms.

[98] In the Spring of 2016, Joshua started a program at George Brown College called Construction Trades Techniques. Joshua failed all of the courses according to the Official Student Transcript. Joshua states that he withdrew from this program because he was constantly too fatigued and in too much pain to keep up with the physical requirements. He was having great difficulty functioning and was experiencing significant anxiety regarding his symptoms.

[99] In September of 2016, Joshua again registered at George Brown College for a Computer Systems Technology Program, hoping that a less physically active program would be a better choice given his symptoms, however, the first semester was too difficult for him, so he again withdrew from the program. According to the Official Student Transcript, Joshua failed 4 out of 5 of the courses and received a “not pass” for the fifth course.

[100] In June of 2017, Joshua again registered for the Environmental Technology Program at Seneca College. Following his chest tube insertion surgery in April of 2017, Joshua testified that he thought the surgery had corrected his lung collapses and that he could try this program again. However, he then suffered several recurring lung collapses and withdrew from the program before it began.

[101] In February of 2018, Joshua was homebound and recovering. He registered for an online security course while waiting to recover enough to be able to register for college. He wanted to be able to work at least on a casual or part-time basis. In June of 2018, he suffered a major lung collapse and had emergency and major surgery.

[102] In September of 2018, following the surgery and some recovery, Joshua again registered for Environmental Technology at Seneca College. It is his evidence that he was now actually able to focus, he felt much better and his outlook was more positive. Joshua did well and received 2 As, a B, and a C in his first semester. This is a three year program.

[103] However, in January of 2019, according to the Official School Transcript, Joshua withdrew from the program. Joshua testified that in the Winter semester of the program, his right lung collapsed. He also caught whooping cough from his sister, which aggravated his right lung. As a result, he was significantly absent from school and did very poorly.

[104] In 2020, Joshua re-enrolled into the second semester of the Seneca College Environmental Technology program, following his recovery. He continues to be in this program full-time. He is doing well, getting good grades (As and Bs) and enjoys it. He feels much better and expects to graduate from this program in May of 2022. Since re-enrolling in 2020, he testified that (at the time of trial) he had only missed one day of school to attend this trial.

Joshua’s Contribution to his Post-Secondary Education:

[105] Despite his health issues, Joshua did some work part-time at No Frills and Sobeys in 2015, 2016, 2017 and 2018. He was in the packing department but moved to “cash” because the physical work was too much for him. Joshua worked until his major surgery in 2018. He testified that his condition, including multiple emergency room visits greatly impacted his attendance at work and eventually he had to stop. He testified that working part-time did not require the same concentration and focus as attending school.

[106] In 2015, Joshua earned part-time income of $4,125; in 2016, he earned $6,556.00; in 2017, he earned $6,905.00; and in 2018, he earned $1,049.00. Joshua did not earn any income on 2019.

[107] Joshua has not needed student loans, nor has he applied for bursaries or grants. He testified that this was because he paid for his college programs with his earnings and his mother’s assistance.

6: THE LAW AND GOVERNING PRINCIPLES:

The Motion to Change:

[108] The father's motion to change and the mother’s response and cross-motion is brought under subsections 37(2.1) and 37(2.2) of the Family Law Act, R.S.O. 1990, c. F. 3, as amended, which provides as follows:

Powers of Court: Child Support

(2.1) Powers of court: child support. -- 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.

Application of Child Support Guidelines:

(2.2) Application of child support guidelines. -- A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines.

Joshua’s Entitlement to Ongoing Child Support and Section 7 Expenses:

[109] Section 31 of the Family Law Act was amended in 2017. This amendment broadened the bases of entitlement to child support for children of unmarried parents and sets out the obligation of a parent to support a child as follows:

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents. 2017, c. 34, Sched. 15, s. 1.

Same

(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. R.S.O. 1990, c. F.3, s. 31 (2).

[110] The onus is on the party seeking to prove the adult child (over the age of 18) is entitled to continuing support, either by enrollment in a full-time program of education, or by reason of illness, disability or other cause, and to provide evidence to the court on a balance of probabilities that the child remains entitled to support. See: Beach v Tolstoy, 2015 ONSC 7248 at para. 32; Kim v. Kim, 2019 ONSC 4685; Meyer v. Content, 2014 ONSC 6001; M.P.A.N. v. J.N., 2018 ONCJ 769.

[111] There is no set cut-off age for adult children enrolled in a full-time program of education. A case by case analysis is required. The older the child, the harder it is to justify continuing the support. See: Douglas v. Campbell, 2006 N.S.J. No. 350.

[112] In M.P.A.N. v. J.N., 2018 ONCJ 769, Justice Alex Finlayson considered the impact of the amendment to s. 31(1) of the Family Law Act, and whether it changed the approach to be taken by the court to entitlement. He states as follows at paragraph 69 of that decision:

“While the new section 31 broadens the bases of entitlement to child support, I note that the amendment did not abandon the old statutory language about enrollment in a full-time program of education in the predecessor to section 31. Therefore, the case law decided under the previous section remains applicable in cases where dependency flows from an adult child's continued educational path.” [par. 69]

[113] Other cases decided since the amendment have also supported this approach. In Teston v. Sooley, 2018 ONCJ 756 and Laramie v. Laramie, 2018 ONSC 4740, the court applied the case law decided prior to the amendment in determining what constitutes a full-time program of education to entitle a child over the age of 18 to ongoing support. See: M.M.D. v. J.A.H., 2019 ONSC 2208.

[114] In Vohra v. Vohra, 2009 ONCJ 135, [2009] O.J. No. 1446, Justice Stanley Sherr stated that a flexible approach should be adopted to determine what is a full-time program of education. The flexible approach allows the determination to be made having regard to the child’s aptitudes and abilities:

“Most courts have followed a flexible approach to the determination of what constitutes a full-time program of education. A full-time program does not necessarily mean full-time attendance at school. A child can be found to be enrolled in a full-time program of education while taking less than a full course load, so long as his or her participation is meaningful and consistent with the program's purposes and objectives. See Wilson v. Wilson, 2002 2824, 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 CarswellOnt 3838 (Ont. S.C.); Lall v. Lall, 2009 ONCJ 96, [2009] O.J. No. 1273, 2009 CarswellOnt 1629 (Ont. C.J.); and Kapounek v. Brown, 2000 20579, 7 R.F.L. (5th) 144, [2000] O.J. No. 1301, 2000 CarswellOnt 1406 (Ont. Fam. Ct.) (where the child received support while attending a two year course over three years). The court must examine the individual circumstances of each case when making this determination.”

[115] The flexible approach, where the Court examines the question of full-time enrolment in the context of the child’s ability and aptitude, is now followed by most courts. In Wilson v. Wilson, 2002 2824, 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 CarswellOnt 3838 (Ont. S.C.) Justice Heeney concluded that section 31 of the Family Law Act is intended to ensure that parents support their children while they are fully engaged in their education and should be strictly construed for the benefit of children.

[116] The case law has set out a variety of factors for the court to consider when determining the issue of entitlement to child support for an adult child. These factors include: the reasonableness of the child’s course of education and career plans, the age of the child, the ability of the child to contribute to their own support, the availability of student loans, the child’s past academic performance, the plans the parents have made for the child’s education and whether an adult child has unjustifiably and unilaterally terminated his or her relationship with the payor. See Farden v. Farden, 1993 2570, 48 R.F.L. (3d) 60, [1993] B.C.J. No. 1315, 1993 Cars­well­BC 619 (B.C. Mast.); Rebenchuk v. Rebenchuk, 2007 MBCA 22 (Manitoba Court of Appeal).

[117] Most courts seem to accept that it is reasonable for a child to be able to obtain one degree with the support of a non-custodial parent. See Rebenchuk v. Rebenchuk, supra, at paragraph [53].

[118] The flexible approach adopted by most courts is particularly important when considering the meaning of full-time attendance for an adult child who has a disability, illness or other medical condition affecting performance. In Vivian v. Courtney, 2010 ONCJ 768, upheld on appeal, Justice Carole Curtis stated the following in considering the meaning of “full-time program of education” for a child with special needs, at paragraphs 41 and 42 of that decision:

“Determining whether or not a child is “enrolled in a full-time program of education” requires a subjective analysis. The court must consider the circumstances of the particular child, and weight should be given to the circumstances of the particular child: Mintz, supra, 1986 (S.C.O. [H.C.J.]), para. 24.

What will be full-time for some children will be influenced by their ability to participate. For Jamie, enrolment through the Independent Learning Centre is a “full-time program of education”. In her circumstances, this is what she can manage. For Jamie, this is a full-time program of education under s. 31(1) of the FLA, and Jamie is entitled to child support.” [pars. 41 and 42]

The Determination of the Amount of Support for the Adult Child Attending University:

[119] If entitlement to child support has been established, the determination of whether it is appropriate to order child support in the Table amount under the Guidelines for an adult child attending postsecondary education is a matter within the court’s discretion.

[120] The relevant Guidelines provisions are sections 3(2) and section 7:

"3(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child…

7(1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:

(e) expenses for post-secondary education;

"(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.”

[121] Section 3(2) is presumptive and must be used unless the court considers that approach would be inappropriate. See Lewi v. Lewi, 2006 15446 (ON CA), [2006] O.J. No. 1847 (C.A.). In Lewi v. Lewi, supra, the Ontario Court of Appeal held that that in determining the question of child support for adult children, clause 3(2)(b) and Section 7 of the Guidelines require the court to consider whether an adult child is able to make a contribution toward his, her or their post-secondary education.

[122] The court may consider assets and income, including available money from summer employment and student loans. There is no standard formula; the matter is largely one of the trial judge's discretion. In many cases the base amount of support is varied during the eight months of the year that the child is living away from home at school. See Caravello v. Wickett [2011] O.J. No. 3761.

[123] In Vohra v. Vohra, supra, Justice Sherr cites with approval the following passage from the Manitoba Court of Appeal in Rebenchuk v. Rebenchuk, 2007 MBCA 22, 212 Man. R. (2d) 261, 2007 CarswellMan 59 (Man. C.A.):

“... Children have an obligation to make a reasonable contribution to their education. However, just because a child is earning income, it does not follow that all of that income must be applied to the child's education. The desirability of allowing the child to experience some personal benefit from the fruits of his or her labours should also be considered: [Glen v. Glen (1997), 1997 1026 (BC SC), 34 R.F.L. (4th) 13 (B.C.S.C.)] (para. 14).

The Claim for Retroactive Child Support:

[124] The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act. This clause reads as follows:

Powers of court

34 (1) In an application under section 33, the court may make an interim or final order,

…….(f) requiring that support be paid in respect of any period before the date of the order;

[125] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.).

[126] The mother’s claim for retroactive child support and section 7 expenses is governed now by the three leading cases of the Supreme Court of Canada addressing these issues: D.B.S. v. S.R.G. et.al., 2006 SCC 37, (the “D. B. S.” case); Michel v. Graydon, 2020 SCC 24; and the most recent, Colucci .v Colucci, 2021, SCC 24, which was decided after this trial was completed.

[127] In D.B.S., the Supreme Court of Canada held that there are three separate situations in which it may be appropriate for a court to order that a retroactive award be paid:

a) awarding retroactive support when there has already been a court order for child support to be paid;

b) awarding retroactive support when there has been a previous agreement between the parties;

c) awarding retroactive support where there has not already been a court order for child support to be paid;

[128] This case clearly falls into the first category.

[129] The court in D.B.S. sets out the following four factors that a court should take into account in addressing retroactive claims for child support:

1. Is there a reasonable excuse for the delay by the recipient in not seeking the increase in support earlier?

2. The conduct of the payor parent, including whether the payor’s conduct is blameworthy.

3. The circumstances of the child.

4. The hardship, if any, on the payor as a result of a retroactive order.

[130] 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 the relevant circumstances in front of it. The payor’s interest in certainty must be balanced with the need for fairness and flexibility.

[131] Once a court decides to make a retroactive award, it must then determine the amount. There are two elements to this decision: first, the court must decide when the order should be retroactive to and second, the court must decide the amount of support that would adequately quantify the payor’s deficient obligations during that time.

[132] The court should generally make the award retroactive to the date the recipient gave effective notice to the payor that support was being sought or the current amount needs to be renegotiated. 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. However, once the issue is raised, the recipient must still be responsible in moving the discussion forward. If she does not, legal action should be contemplated. (D.B.S., paragraph 121).

[133] It will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor, subject to the exception for blameworthy conduct. Where the payor has engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive date of the award. It will then be open to the court to determine the quantum.

[134] In Michel v Graydon, supra, the Supreme Court of Canada expanded on the D.B.S. factor of delay by the recipient as follows:

a) We should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support (par. 111).

b) A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted (par. 113).

c) Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. A delay motivated by any one of the reasons set out below should generally not be understood as arbitrary within the meaning of D.B.S.:

i) Fear of reprisal/violence from the other parent.

ii) Prohibitive costs of litigation or fear of protracted litigation.

iii) Lack of information or misinformation over the payor parent’s income.

iv) Fear of counter-application for custody.

v) The payor leaving the jurisdiction or the recipient unable to contact the payor parent.

vi) Illness/disability of a child or the custodian.

vii) Lack of emotional means.

viii) Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.

ix) Ongoing discussions in view of reconciliation, settlement negotiations or mediation.

x) The deliberate delay of the application or the trial by the payor.

[135] In Colucci v. Colucci, 2021 SCC 24 (S.C.C.), the Court set out the present framework that should be applied for retroactive applications to increase support at paragraph 114 as follows:

a. The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b. Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c. Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d. The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel v. Graydon, supra. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e. Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[136] Sections 14 (a) and (b) of the Child Support Guidelines set a low bar in determining what constitutes a material change of circumstances and only references “a change in circumstances”. A “material change in circumstances” must show a material increase or decrease in income that has some degree of continuity.

[137] Once established, the first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 24. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.

[138] In Michel v. Graydon, supra, the Court held that variation motions for retroactive support can be brought even if the child is not eligible for child support at the time the motion is issued. The statement made in D.B.S. that a child must be eligible for child support at the time of the application was made “in obiter”. Further, none of the four cases that the Court was considering in D.B.S. were original applications (par. 107), such as the case before me. The Court also set out the following principles when determining retroactive child support.

[139] Child support obligations arise upon a child’s birth or the separation of their parents. Retroactive awards are a recognized way to enforce such pre-existing obligations and to recover monies owed but yet unpaid. Such a debt is a continuing obligation which does not evaporate or fade into history upon a child’s 18^th or 19^th birthday or their graduation from university (Michel v. Graydon at paragraph 41).

[140] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (Michel v. Graydon at paragraph 25).

[141] Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so (Michel v. Graydon at paragraph 132).

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

[143] The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness) (Michel - par. 36).

[144] Since D.B.S., various courts have accepted and acted upon the principle that failing to disclose an increase in income is blameworthy conduct justifying variation to the date of the change. “Blameworthy conduct”, as that concept has developed in the cases, does not simply extend to the most egregious cases of deception or intentional evasion, like this case. It may also extend to cases of mere passivity and “taking the path of least resistance” (Colucci v. Colucci at paragraph 41).

[145] In practice, then, the date of retroactivity is frequently adjusted to align with the date of the material increase in income, despite the “general rule” of varying to the date of effective notice in D.B.S. (para. 118). It would be “untenable to suggest that a parent who fails to provide financial disclosure can assume that the amount being provided is adequate because the recipient parent has not brought a court application”. Further, even where the payor has disclosed increases in income, the D.B.S. factors may support extending a retroactive increase of support back to the time of the change in income (par. 43).

[146] These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other fear and danger (Michel v Graydon, at par. 86).

[147] It is generally a good idea to seek child support as soon as practicable, but it is unfair to bar from parents from applying for the financial support they are due because they put their safety and that of their children ahead of their financial needs or because they could not access justice earlier (Michel v Graydon, at par. 87).

[148] The principles set out in the D.B.S. cases regarding retroactive child support apply to section 7 expenses as well. See Selig v. Smith, 2008 NSCA 54, 266 N.S.R. (2d) 102, 851 A.P.R. 102, 56 R.F.L. (6th) 8, [2008] N.S.J. No. 250, 2008 CarswellNS 307 (N.S.C.A.), paragraphs [25] and [26]. The court in the D.B.S. cases makes no distinction between the table amount of child support and section 7 expenses for child support.

The Section 7 Expenses: Entitlement:

[149] The mother’s claim for special or extraordinary expenses is brought under section 7 of the Child Support Guidelines:

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

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

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

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

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

e) expenses for post-secondary education; and

f) extraordinary expenses for extracurricular activities.

[150] The definition of “Extraordinary expenses” is set out at section 7 (1.1) of the Guidelines:

(1.1) Definition, "extraordinary expenses". -- For the purposes of clauses (1)(d) and (f),"extraordinary expenses" means:

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

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

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

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

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

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

(v) any other similar factors that the court considers relevant.

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

[152] Where the expense is not within the means of the parties, the court may limit or deny recovery of that amount. Ebrahim v. Ebrahim, [1997] B.C.J. No. 2039 (SCJ); L.H.M.K. v. B.P.K. 2012 BCSC 435, [2012] B.C.J. 593 (SCJ).

[153] In Titova v. Titov 2012 ONCA 864, the Court of Appeal for Ontario explained the following in awarding section 7 expenses: In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party’s income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary “in relation to the child’s best interests” and are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation.” If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”. Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

[154] The list of special and extraordinary expenses under clauses 7(1) (a) to (f) is exhaustive. If a claim does not fall within any of the listed categories, then it must be dismissed. See Kilrea v. Kilrea (1998), 82 A.C.W.S. (3d) 952, [1998] O.J. No. 3677, 75 O.T.C. 269, 1998 CarswellOnt 3652 (Ont. Gen. Div).

[155] The onus is on the parent seeking the special or extraordinary expenses to prove that the claimed expenses fall within one of the categories under section 7 and that the expenses are necessary and reasonable, having regard to the parental financial circumstances. See Park v. Thompson, 2005 14132, 77 O.R. (3d) 601, 197 O.A.C. 158, 252 D.L.R. (4th) 730, 13 R.F.L. (6th) 415, [2005] O.J. No. 1695, 2005 CarswellOnt 1632 (Ont. C.A.); Kase v. Bazinet, 2011 ONCJ 718, at paragraph 39.

[156] Expenses for usual or ordinary extracurricular activities for a particular family are included in the table amount of support and are not considered extraordinary expenses under clause 7(1)(f) of the Guidelines. See Smith v. Smith (1997), 75 A.C.W.S. (3d) 703, [1997] O.J. No. 4833, 48 O.T.C. 316, 1997 CarswellOnt 4493 (Ont. Gen. Div.), paragraph [14] and [16]; D'Urzo v. D'Urzo (2002), 2002 78074 (ON SC), 30 R.F.L. (5th) 277, [2002] O.J. No. 2415, [2002] O.T.C. 419, 2002 CarswellOnt 2104 (Ont. S.C.); Park v. Thompson, supra; Zimmerman v. Doe, 2007 28755, 159 A.C.W.S. (3d) 407, [2007] O.J. No. 2896, 2007 CarswellOnt 4721 (Ont. S.C.); Kase v. Bazinet, 2011 ONCJ 718 (O.C.J.).

[157] It is also clear from the case law that a custodial parent does not have carte blanche to enrol a child in any number of extra-curricular activities and then to look to the non-custodial parent to share all of the costs without consultation. See Forrester v. Forrester, 1997 15466, 73 A.C.W.S. (3d) 479, 11 O.F.L.R. 61, [1997] O.J. No. 3437, 1997 CarswellOnt 3212 (Ont. Fam. Ct.), paragraph [4]; Zimmerman v. Doe, supra.

7: ANALYSIS AND APPLICATION:

Credibility and Reliability Findings:

The Parties:

[158] As in most highly conflictual family law cases where there are allegations by the parties against each other and often completely contradictory narratives, the court must assess the credibility of both parties and their respective witnesses.

[159] Although there were several important facts that were not materially in dispute by the parties, I had concerns regarding the credibility and reliability of both parties’ evidence on some of the key issues that I had to determine. Both parties were evasive and argumentative at times during their cross-examination on contentious issues. Overall, I could not prefer one party’s evidence over the other, however, I did prefer one party’s evidence over the other on different issues.

[160] I will address the concerns that I had with both parties’ credibility and reliability and provide examples when assessing the D.B.S. factors and making findings of fact in the reasons that follow.

Joshua:

[161] The court found Joshua to be a credible witness. He gave his evidence in a straightforward manner. He was not evasive. He did not exaggerate his evidence and he did not appear coached, contrary to the father’s submissions. He did not recall much of his visits with the father when he was 9 years old, but this does not mean that he was coached, as the father submits.

Dr. Rosenberg:

[162] The court found Dr. Rosenberg to be a credible and reliable professional witness.

Application of the Law to the Facts:

1. Whether Joshua continues to be entitled to child support:

[163] I find that Joshua continues to be entitled to child support as an adult child until May 3, 2022, which is the month he graduates from his three-year college program in Environmental Technology. This is Joshua’s first undergraduate degree or diploma. Joshua will be 25 years old at that time.

[164] I adopt the flexible and expanded meaning of full-time attendance at university or college as established in the case law. I found that the father’s view of Joshua and the impact of his well-documented medical conditions on his ability to engage in full-time attendance to be unfairly harsh and judgmental.

[165] I find that Joshua has struggled to complete his first undergraduate degree because of his medical conditions, but he has persevered. I was impressed by Joshua’s perseverance. Notwithstanding Joshua’s undoubtedly difficult emotional and physical circumstances growing up, I found him to be a fine young man. I was impressed with how he handled his father’s cross-examination of him, a father that he has not seen since he was 9 years old. This no doubt must have been a difficult emotional experience, but he showed no anger or upset. He was polite and forthcoming.

[166] Although Joshua does not have a relationship with his father, there is no evidence, nor did anyone suggest, that Joshua unjustifiably and unilaterally terminated this relationship.

[167] Joshua was only 9 years old when his father chose to no longer have any contact with him. I find that both parents were to blame for this. The mother has a difficult personality, but the evidence demonstrates, and the father admitted, that he did make the decision to “discontinue contact” with Joshua after he was approximately nine years old, but only because the mother, according to him, would not have a civil conversation with him.

2. The Determination of the Amount of Joshua’s Ongoing Support:

[168] I find that the father should continue to pay the ongoing basic table amount of child support for Joshua while he is living at the mother’s home and attending college until May 31, 2022. The presumptive rule applies because Joshua is not incurring residential fees and the college tuition is relatively modest compared to some university tuitions. This approach is in accordance with section 3(2) of the Guidelines, and case law.

[169] However, given the part-time income that Joshua earned in 2015, 2016, 2017 and 2018, he should contribute towards his post-secondary expenses in accordance with his legal obligation to do so. I find that Joshua should be responsible for one-third of his post-secondary expenses. See Lewi v. Lewi, 2006 15446 (ON CA), [2006] O.J. No. 1847 (O.C.A.).

[170] Further, in determining the means, needs and circumstances of the parents and the child under section 7(1) of the Guidelines, the court may consider the parties’ capital assets, income distribution, debts, third-party resources, support obligations, receipt of support and any other relevant factor. Delichte v. Rogers, 2013 MBCA 106 Gifts can also be considered. L.(C.) v. F. (S.), 2009 CarswellNB 659 (Q.B.).

[171] Going forward, I find that an appropriate sharing of Joshua’s post-secondary expenses be one-third to Joshua and the balance apportioned between the parents on an ongoing basis.

[172] Joshua’s post-secondary expenses shall only include the costs of tuition, books, and parking pass on an ongoing basis.

The Mother’s Claim for Retroactive Child Support and Section 7 Expenses:

[173] I find that the mother is entitled to a retroactive award of the Table amount of child support. In making this determination, I consider the four D.B.S. factors, as further expanded upon by the Supreme Court of Canada in the subsequent decisions of Michel v Graydon, supra and Colucci v Colucci, supra, as follows:

Delay:

[174] The mother’s delay in not bringing a court action since 2007 until she responded to the father’s motion to change in 2018 was unreasonable. The mother repeatedly threatened to take the father back to court and to serve him with court documents since 2007 yet failed to do so. The mother’s explanation of some of the reasons for her 12 year delay was not credible.

[175] The mother’s evidence that she did not take this matter back to court because the father was deliberately evading service and hiding his whereabouts, thus making it very difficult to serve him was not credible.

[176] The mother is a very sophisticated and resourceful litigant who has amassed voluminous research on the father over the past 12 years, based on the evidence in this trial. The mother is also a trained law clerk and paralegal. She has worked as a registrar in the Superior Court of Justice and in a number of civil law firms. She also retained at least four lawyers between 2008 and 2016.

[177] The mother knew the father’s home address in Ohio in 2006 and it is not disputed that this address had not changed until 2013. She researched and located the father’s employment at the Greene County Sheriff’s Office in 2009 and at the college where was an adjunct instructor. In January of 2012, she was able to obtain his annual employment income from his employer for each year since 2007. She located the father’s new address in Alabama in 2013 and she ascertained his employment at Lowe’s. She actively followed the father’s Facebook account and sent messages to him for a number of years until the father made his account private. She corresponded with the father’s Canadian and American lawyers and sent the father “countless” emails, starting in 2007 onwards. Shortly before this trial ended, she discovered through her research that the father had sold his house in Alabama. The mother had discovered both the listing and the sale price through her internet research.

[178] The mother’s testimony that she felt “uncomfortable” or afraid to serve the father at his place of employment because she received a letter from the father’s American lawyer threatening criminal charges for harassment was not credible. Following receipt of the letter, the mother immediately advised the lawyer in writing that she had contacted the governing body of the Ohio state bar and threatened to file a complaint against him for professional misconduct. Furthermore, in 2015, three years after receiving this letter, the mother acknowledged phoning the father at Lowes and delivering a letter to him there which states: “I require an address for service. I contacted you on Facebook requesting you provide me with this. You again failed to respond. You will therefore be served at your place of employment.” The mother tone in this lengthy letter is aggressive and not fearful. She could easily have served the father at any one of his places of employment by process server or by substitutional service.

[179] If in fact the mother was not able to personally serve the father through a process server at either his home address in Ohio, or through his various employers, she could easily have obtained an order for substituted service at his employment or by ordinary mail at his home address, or even through the Family Responsibility Office (FRO). The mother wrote to the father and his employer at the Greene County’s Sheriff’s office in 2009 and 2012 and she wrote the father at his employment at Lowes in 2015. The mother was in constant communication with FRO, which was in regular communication with the father.

[180] The mother’s explanation that she did not want to take the father back to court because she did not know whether his income had increased was understandable until January of 2012. It is one of the factors that Michel v Graydon lists as a reason for delay. However, the mother acknowledged that in January of 2012, she was able to obtain the father’s annual income information dating back to 2007 from his employer at Greene County Sheriff. She produced this information as an exhibit at trial. It is apparent that the father’s income had significantly increased since the 2006 Order. The mother could have taken the father back to court in 2012.

[181] The court also had difficulty with the mother’s evidence that she did not have the “energy nor the financial resources” to take the father back to court in 2012.

[182] Although the mother was involved in a car accident in 2009, she testified that she had largely recovered and was functional by 2012. The volume of letters, emails, and correspondence that the mother was sending to the father at that time did not suggest a lack of energy.

[183] Further, the mother did not lack the financial resources to go back to court. The mother admitted under cross-examination that she received an insurance settlement of $190,000 in 2013 for the 2009 car accident. She further admitted that she received an additional l $210,000 from the net sale proceeds for the sale of her home in 2014.

[184] In cross-examination, the mother acknowledged that in 2013 and 2014, she had received in total approximately $400,000 in funds from the insurance settlement proceeds and the sale of her home. When asked why she gave earlier evidence that she had “lost” her home in 2014 because of the car accident when in fact she had sold it a profit, the mother then changed her evidence and stated that she had a lot of consumer debt and legal fees from two contested family court proceedings. Neither of these amounts were disclosed in her evidence in chief, nor was there supporting documentation.

[185] The court finds that the 2009 motor vehicle accident and her recovery, as well as the ongoing litigation with her other child’s father may well have been understandable reasons for delay in going back to court, but by 2012, after the mother had recovered and obtained the father’s annual income statements through his employer, the mother could have moved forward in bringing this matter back to court.

Blameworthy Conduct:

[186] Although the mother’s delay was unreasonable, the father engaged in blameworthy conduct.

[187] Once the father had effective notice that the mother was seeking full financial disclosure and an increase in child support, then he should have adjusted the table amount of child support payable in accordance with his actual income and the Child Support Guidelines. It is not disputed that the father received effective notice in 2007, when the mother started sending him demand letters, requesting financial disclosure and contribution to the child’s section 7 expenses.

[188] By 2008, the father knew that his actual annual income, even in US dollars, had significantly exceeded the $71,000 set out at paragraph 3 of the 2006 Minutes of Settlement and paragraph 1(c) of the Final Order. He knew that he was underpaying child support.

[189] Further, notwithstanding the 2006 Final Order, the father has not contributed to any section 7 expenses since the date of the Order. The father acknowledges receiving some of the mother’s correspondence seeking contribution to numerous expenses, but he simply ignored the correspondence and refused to contribute to any. Although some of these expenses may not have been legitimate section 7 expenses, the father’s refusal to contribute to any section 7 expense was blameworthy conduct.

[190] The father’s evidence that he provided his annual financial disclosure each year in accordance with the 2006 Final Order was not credible. He acknowledged in his testimony that the mother was repeatedly “harassing” him in writing for information and by 2009, she was sending correspondence to his employment at Greene County advising him that he had failed to provide financial disclosure and demanding his 2006, 2007, and 2008 tax returns. It makes no sense that the mother would be repeatedly requesting this information if he had sent it.

[191] Further, the father’s evidence that he would simply mail his tax returns by ordinary mail to the mother’s address without keeping any paper record or copy that he had done so because he did not expect this to be a contested fact was not credible, given the deep level of distrust between the parties, the years of highly contested litigation and the mother’s repeated demands in writing for the information, of which he was aware. The father’s testimony that he was “naïve” about keeping a paper record was disingenuous. He is a highly trained police officer and it is undisputed throughout this litigation that he did not trust the mother and believes her to be duplicitous.

[192] The father’s evidence on this issue also changed during the trial. When asked in re-examination, the father testified that he did know that he had to provide annual financial disclosure and that his Canadian lawyer never informed him.

[193] The father further testified that in any event, his salary was public information and that by 2012, he became aware that the mother had already obtained his income information going back to 2007 from the Sheriff’s office, implying that in his view, he did not need to send her this information.

[194] The father’s evidence that was unaware that the child support payable under the 2006 Order was based on his income converted to Canadian dollars was also not credible. The father had a very experienced family lawyer when he consented to the 2006 Final Order. Further, the father acknowledged signing the 2006 Minutes of Settlement, witnessed by his lawyer, which clearly stipulated that his child support obligation would not increase unless his total income exceeds “CDN $71,000.00”.

[195] Even if the Ontario Court Order was based on US dollars, (which is incorrect), the father’s income significantly increased beyond $71,000 USD after the 2006 Order. The father was clearly aware that he was underpaying basic child support in accordance with the Child Support Guidelines.

[196] The court also had difficulty with the father’s evidence that he “had no idea” that he should have adjusted the basic child support when his income had increased because American law is very different from Canadian law. He assumed that it was up to the mother to go back to court and he waited for her to do so. The father’s evidence that he assumed that the mother was fine with their arrangement is contradicted by the repeated correspondence from the mother to him and his lawyers for financial disclosure and increased support. The father also testified that he had retained a Canadian family lawyer by November of 1998.

[197] Even if the father’s evidence on this issue was true, it is well-established that ignorance of the law is no excuse. As stated in Colucci, supra, at paragraph 77 of that decision, a payor cannot reasonably expect that their support obligation remains static on the face of a material increase in their income. Payors should not be encouraged to “wait out” their legal obligation and then go back to court only when they seek to terminate child support, as was the case here. D.B.S. purposively provided an expansive definition of blameworthy conduct, being anything that privileges the payor’s interest over their child’s right to an appropriate amount of support. See: D.B.S., supra, as paragraph 106; Michel v Graydon, supra, at paragraph 115.

The Circumstances of the Child:

[198] Notwithstanding the father’s blameworthy conduct, the mother, overall, ensured that Joshua’ needs were met and that he lived a relatively comfortable life. There is insufficient evidence that Joshua experienced financial hardship, with the exception that his mother has not yet been able to fund his orthodontic treatment.

[199] The mother’s evidence that she and the children have always struggled with financial hardship and that money was “always tight” was not entirely accurate.

[200] For example, the mother gave evidence that following her 2009 motor vehicle accident, she lost her dental hygienist business and then “lost” her home in 2014. However, she admitted in cross-examination that she had sold her Stouffville home in 2014 for $560,000 and received a profit of $210,000 the same year. This was not disclosed in the mother’s evidence in chief. The mother purchased this home in 2008 for $350,000. She testified that she had qualified for a mortgage because she was working full-time as a dental hygienist and that she maintained the mortgage payments.

[201] The mother admitted in cross-examination that in 2013, she took her children on a ten-day vacation to Hawaii, at a cost of approximately $8,000 which she paid for herself, and she also took her daughter to Williamsburg, Virginia for a holiday the same year. In 2014, she took both children to Disney World in Florida for one week. In 2016, she took her daughter to Barbados for a week to celebrate her birthday. She testified that she paid for these visits.

[202] The mother also acknowledged that she transferred approximately $100,000 her savings to her mother as a “loan”, and it is so identified in her sworn Financial Statement, dated November 9, 2020 as “a loan.” However, she testified that she can draw from these funds when she needs to.

[203] The mother and the children are also fortunate to share her parents’ large home in Toronto. The mother and the children have a self-contained apartment in the home, although her children have access to the whole house. The mother deposes in her most recent financial statement that she is paying $1,000.00 in rent to her parents, a very reasonable rent in Toronto. No rental receipts were provided. She testified that she and the children recently obtained a pet dog at a cost of $2,000 and incur approximately $200.00 per month in pet care.

[204] According to the mother’s financial statement dated November 9, 2020, the mother has approximately $120, 119.68 in savings, debt in the amount of $8, 914.00, for a net worth of $111, 206.00.

[205] Notwithstanding the father’s refusal to pay section 7 expenses, the mother has been able to provide Joshua with many recreational and extra-curricular activities throughout his life, according to her charts and receipts dating back to 2007.

[206] Joshua also testified that he has not needed student loans, nor has he applied for bursaries or grants because he paid for his college programs with his earnings and his mother’s assistance.

[207] Despite the above, any kind of hardship is not a necessary antecedent to making a retroactive support award. A payor’s support obligation does not disappear when the child no longer requires support. If this factor were to tip the balance against making a retroactive award, then, in essence, the payor will have profited from “holding off” on paying increased child support. See Michel v. Graydon, supra, at par. 122.

[208] The fact that the child did not have to suffer hardship because of their custodial parent’s sacrifice is not one that weighs against making a retroactive support order. Rather, the recipient parent’s hardship, like that of a child, weighs in favour of the retroactive support award and an enlarged temporal scope. See: Michel v Graydon, at par. 123.

The Hardship, if any on the Payor:

[209] The father may suffer some hardship if a retroactive award is made, but in all cases, this can be addressed by the form of payment. See Michel v. Graydon, supra, at paragraph 124.

[210] The court had difficulty with some of the father’s evidence regarding his father’s financial circumstances. In his most recent financial statement dated November 4, 2020, he claimed that his debts were $254,748.24, including his mortgage on his Alabama home, and a net worth of minus (28, 495.24). Yet, he had an annual surplus from his income and expenses, and he had paid his debt down by $11,660 from the previous year.

[211] Further, during his cross-examination on this financial statement, the father failed to disclose that he had listed and had sold his home for $265,000 USD, until it was pointed put to him. The father was obviously upset about the disclosure of this information and initially did not want to answer these questions until directed to do so by the court.

[212] On January 20, 2021, during the cross-examination on his November 4, 2020 Financial Statement, when asked if there had been any big changes since the statement was sworn, the father replied no. This was untrue, as the father had sold his home for $265,000 on January 6, 2021, according to the subsequently disclosed Agreement of Purchase and Sale. Further, the father had valued his home in his sworn Financial Statement at $190,000 USD, approximately $75,000 less than the sale price only eight weeks later.

[213] The agreement of purchase and sale later produced revealed that on February 2, 2021, the father received approximately $96,000 USD in net sale proceeds from the sale of the home, following the payment of his mortgage and other expenses. This is the equivalent of $122,000 Canadian dollars.

[214] The father has no other dependants. His wife was working until they both retired. Notwithstanding an income of $118,000 CAD in 2019 and a similar income in previous years, he appeared to carry a high consumer debt load. It is apparent from his evidence that he and his wife eat out often, he has a boat and a membership in a boat club, and they took several holidays to places that include Law Vegas, Florida, Chicago, the Dominican Republic and the Virgin Islands. The property he owned in Alabama was situated on 1.8 acres of land.

[215] If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship. It must be taken into account that the payor had the benefit of the unpaid child support for the full time in which it was unpaid and such monies may have funded a preferred lifestyle or the very purchase of property which may now need to be sold. This is a crucial part of the equation. See: Michel v Graydon, supra at paragraphs 125 and 126.

The Section 7 Expenses:

[216] In carefully reviewing all of the section 7 expenses that the mother incurred for Joshua since 2007, according to the charts that she prepared and the receipts provided, I find that the vast majority of the expenses do not meet the definition of “extraordinary expenses for extra-curricular activities under section 7(1) (f) of the Guidelines. The soccer, swimming, music, guitar, school supplies, basketball, soccer shoes, bikes, cub scout uniforms, are usual and ordinary extra-curricular activities and not considered section 7 expenses. The other medical expenses for Joshua’s EpiPen and medication, were for nominal amounts, with the exception of his eyeglasses and contact lenses. The largest medical expense for Joshua (not yet incurred) is for his orthodontics, at a cost of approximately $5,200.00.

[217] It is also clear from the case law that a custodial parent does not have carte blanche to enrol a child in any number of extra-curricular activities and then to look to the non-custodial parent to share all of the costs without consultation. See Forrester v. Forrester, 1997 15466, 73 A.C.W.S. (3d) 479, 11 O.F.L.R. 61, [1997] O.J. No. 3437, 1997 CarswellOnt 3212 (Ont. Fam. Ct.), paragraph [4]; Kase v. Bazinet, 2011 ONCJ 718.

[218] As noted, I have found that the mother’s delay in seeking these expenses after 12 years is also a factor that I have considered. When considering the section 7 expenses in the context of the D.B.S. factors, and in exercising my discretion, I find that the only section 7 expenses that the mother is entitled to claim retroactively are Joshua’s post-secondary expenses since 2015, his dental surgery and his orthodontic expense.

8: CONCLUSION:

[219] There is no question that the father underpaid basic child support for Joshua since 2007. The father knew that he was underpaying child support and he did not contribute at all towards Joshua’s section 7 expenses for 12 years. He also failed to notify the mother of his significant increases in income and failed to provide financial disclosure.

[220] For the reasons above, in considering all of the D.B.S. factors, and as further expanded upon through the lens of Michel v Graydon, supra and Colucci v Colucci, supra, I find that the father is obligated to pay the difference between the amount of child support that he did pay under the 2006 Order and the amount that he should have paid in accordance with his increased income since 2007.

[221] By his own evidence, the father has calculated that the retroactive amount of the basic child support owing to be $45,834.00 from 2007 to 2020.[^6] This is based on his annual income in each of those years and the shortfall between the amount paid under the 2006 Order and the correct table amount.

[222] The mother calculated the retroactive amount of basic child support owing for the same time period (2007 to 2021) to be $59, 199.00, based on her assertion that the father should pay ongoing child support on his 2019 income of $118, 288.00, for the years 2020 as well. However, I find that a more accurate reflection of the father’s 2021 income should be based only on his pension.

[223] The difference between the parties’ calculations is therefore approximately $13, 365. Given that I have found that the 2021 income is more accurately calculated on the father’s pension income only, this reduces the mother’s calculation of the shortfall of basic child support from 2007 to 2021 to be $55,784.

[224] In reviewing the mother’s calculations, I also find that her estimate of the father’s 2014 income at $145,330.00 to be inaccurate, (as well as his income for 2020 and 2021).

[225] In my view, and in exercising my discretion, an appropriate and fair retroactive award for both child support and the section seven expenses from 2007 to 2021 should be fixed at $55,000. As indicated, I have declined to include most of the section 7 expenses. I have only included what I considered to be the father’s proportional contribution to Joshua’s post-secondary expenses, after deducting Joshua’s contribution, and orthodontic expense. I have limited the post-secondary expenses to tuition, books, and parking passes during the years incurred.

[226] It is hoped that this retroactive award achieves the "balance between certainty and flexibility" that the court describes in D.B.S., in the overall “fairness” analysis that must be undertaken.

[227] I will also attempt to craft a 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., supra, at para. 116; Connelly v. McGouran 2007 ONCA 578, 2007 ONCA 578, 41 R.F.L. (6th) 1, at para. 34 (Ont. C.A.); Olaveson v. Olaveson 2007 23168 (ON SC), (2007), 40 R.F.L. (6th) 327 (S.C.J.), at para. 19.

[228] The ongoing child support will be based on the father’s actual pension income, as set out in his most recent 2021 pension statement provided, which is $65, 949.92 USD or $82, 663.17 CAD. The table amount under the Child Support Guidelines for this income is $770.00 monthly.

[229] The ongoing section 7 expenses for Joshua’s post-secondary expenses, until May 31, 2022, will be paid at a monthly rate of $366.20 until May 31, 2022. This is based on Joshua’s post-secondary expenses of tuition, books, and parking pass, which total $3487.70 in 2022, according to the documentary evidence and the mother’s Ongoing Expense Chart. Joshua’s one-third contribution is $1046.31. The father’s proportional contribution to the balance at 75 percent is $1,831.04, payable at a monthly rate of $366.20 until May 31, 2022. The total ongoing monthly child support and section 7 expenses until May 31, 2022 is therefore $1,136.00 per month.

[230] Given that I have found that the mother’s 12 year delay in seeking her retroactive claims to be unreasonable, notwithstanding the father’s blameworthy conduct, I decline to grant the pre-judgment interest of $19, 971.00 that the mother is claiming, in accordance with my discretion under section 130 of the Court of Justice Act, R.S.O 1990, c. C. 43. See: M.P.A.N. v. J.N., 2019 ONCJ 96 at paragraph 25, per Justice Alex Finlayson.

9: FINAL ORDER:

[231] The Final Order will be as follows:

1. Commencing January 1, 2022, the father shall pay ongoing child support to the mother in the amount of $770.00 per month, and on the first day of each month thereafter until May 31, 2022. The child support shall terminate at that time.

2. The above amount is based on the Table amount for one child pursuant to the Ontario Child Support Guidelines, and the father’s 2021 annual pension income of $65,949.92 USD, which is $81,663.17 CAD.

3. Commencing January 1, 2022, the father shall pay $366.00 per month to the mother towards Joshua’s section 7 expenses, and on the first day of each month thereafter until May 31, 2022. The section 7 expense contribution shall terminate at that time. There shall be no other section 7 expenses owing.

4. The total amount of ongoing and section 7 expenses for Joshua shall therefore be $1,136.00 per month until May 31, 2022.

5. The amount of retroactive basic child support and section 7 expenses owed by the father between 2007 and 2021 shall be fixed at $55,000.00. This amount shall be paid either in a lump sum forthwith and no later than 35 days from the date of this Order, or at a rate of $264.00 per month, commencing February 1, 2022 until the full balance is paid.

6. Once the ongoing child support and section 7 expenses have terminated on May 31, 2022, if the father has not paid the full lump sum amount of retroactive child support and section 7 expenses set out above at paragraph 4, then the monthly payments towards the lump sum retroactive payment set out in paragraph 5 shall be increased to $1,400.00 per month, until the balance is paid in full.

7. A Support Deduction Order shall issue, and the Family Responsibility Office shall forthwith adjust its records accordingly.

8. All other claims are dismissed, except the claim for costs.

[232] If the either party seeks costs, then they shall serve and file costs submissions, limited to 5 single spaced pages, with a bill of costs and offers to settle attached, no later than 30 days from the date of this Order. Any written response to costs submissions shall be served and filed no later than 30 days.

Released: December 13, 2021 Signed: “Justice Sheilagh O’Connell”

[^1]: As of April 2021, which was the last date that the mother had updated her interest calculations.

[^2]: The parties dispute the length of the relationship, the father says about one year, the mother says two years.

[^3]: Father’s Affidavit of Evidence in Chief sworn October 16, 2019 and all attached exhibits.

[^4]: During his cross-examination, the father corrected himself and stated that his correct income in 2019 was $88, 938 USD ($115, 619.00 CAD), as corrected on his sworn Financial Statement dated November 4, 2020 and in his testimony.

[^5]: Bank of Canada, Government of Canada Statistics, Average Monthly Exchange Rate

[^6]: The father corrected his evidence during his testimony and stated that his correct income in 2019 was $88, 938 USD ($115, 619.00 CAD), as corrected on his sworn Financial Statement dated November 4, 2020 and in his testimony. He further testified that his 2020 income was $75, 852 USD, or $98, 806 CAD and his 2021 income was based on his pension income $65,949.92 USD, according to his April 2021 Pension statement, or $82, 663.17 CAD.