Ontario Court of Justice

Date: February 9, 2021 Court File No.: D24230/03

BETWEEN:

Luisa Zevallos Applicant

— AND —

Andres Munoz Respondent

Before: Justice Roselyn Zisman

Heard on: February 1, 2021 Reasons for Judgment released on: February 9, 2021

Counsel: Richard Teicher and Jake Bershadsky (student) ................. counsel for the applicant Tijana Malogajski ...................................................................... counsel for the respondent

Decision on Motion to Change

Zisman, J.

1. Introduction and background

[1] This is my decision on a Motion to Change by the Applicant (mother). The mother seeks to vary the child support order of April 14, 2004 and claims retroactive child support and reimbursement for Laura Munoz’s special and extraordinary expenses related to her post-secondary education.

[2] The parties began their relationship in 1992. They are the parents of Laura Munoz born […], 1994.

[3] The parties separated in 2000 and were divorced on February 5, 2006.

[4] The final order of April 14, 2004 provided that the Respondent (father) pay child support of $232.00 per month to the mother in accordance with the Ontario Child Support Guidelines for the support of one child based on the father’s annual income for guideline purposes of $26,032.11.The order has the usual clause with respect to payments being made to the Office of the Director of the Family Responsibility Office, unless the support order is withdrawn.

[5] The order also provided that the father ensure that mother has his current address and telephone number.

[6] The mother raised Laura with minimal support from the father. The father had limited contact with Laura. The father exercised sporadic access and had little contact with Laura over the years.

[7] The father did provide some funds directly to Laura over the years and assisted her with a trip to Asia.

[8] Laura attended Humber College and York University from 2012 to 2019. According to Laura, she has incurred tuition and incidental fees of $34,366.55.

[9] Laura and the father attempted to restart their relationship in 2015 but when that failed, the mother began this Motion to Change.

[10] The father has made $232.00 per month in accordance with the outstanding court order. He has not increased his child support payment despite an increase in his income.

[11] The father did not voluntarily provide financial disclosure since the April 14, 2004 order.

[12] The mother commenced this Motion to Change on December 6, 2019 with a first appearance date of February 12, 2020.

[13] The parties were before the court for a case conference on November 16, 2020. Pursuant to an order of made that day, the father provided annual financial disclosure from 2004 to 2019, except for 2006.

[14] On consent the father’s ongoing child support obligation was terminated as of December 31, 2019.

2. Positions of the parties

[15] The mother seeks retroactive child support as of 2008 in the amount of $45,437.28.

[16] The mother also seeks that the father contributes to Laura’s post-secondary expenses in the amount of $10,636.

[17] The father agrees that he owes some retroactive child support but only as of 2015 when his financial circumstances stabilized. He further provides copies of money orders for child support in 2007 to 2009 and seeks credit for these payments if child support is ordered retroactive to 2008.

[18] It is the father’s position that he has already contributed $21,000 to Laura’s post-secondary education by means of e-transfers and cash and therefore he should not be required to pay any further share of these expenses.

3. Issues

[19] The issues to be determined are as follows:

1. Is the mother entitled to a retroactive child support order? If so, what is the proper commencement date?
2. Is the mother entitled to a retroactive section 7 expense order with respect to Laura’s post-secondary expenses? If so, in what amount?

4. Applicable legal principles

4.1 Summary of D.B.S. principles

[20] In [S. (D.B.) v. G. (S.R.), 2006 SCC 37] the Supreme Court of Canada outlined the following important principles governing orders for child support and retroactive child support as follows:

• Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child's parents (para. 38);
• Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38);
• The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the "necessities of life" (paras. 38-45).
• Retroactive awards are not truly "retroactive", since they merely hold payors to the legal obligation they always had to pay support commensurate with their income (para. 2);
• Retroactive awards are not confined to "exceptional circumstances" or "rare cases" (para. 5); and
• In determining whether to make a retroactive award, the payor parent's interest in certainty in his/her obligations must be balanced with the need for "fairness and ... flexibility". A court should consider whether the recipient parent's delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail (para. 133).

4.2 Summary of Michel v. Graydon consideration of D.B.S.

[21] The Supreme Court of Canada in the case of [Michel v. Graydon, 2020 SCC 24] has revisited these principles and provided an in depth and nuanced analysis that considered the social context and legislative intent with respect to the payment of child support both ongoing and retroactive. The court emphasizes the obligation of a payor to meet their existing and unfulfilled support obligation, reinforces that child support is the right of the child and that underpayment of child support leads to hardship and contributes to the feminization of poverty.

4.2 (a) Eligibility

[22] With respect to the issue of the eligibility of historical child support, the court concluded that that the statement in D.B.S. that the child must be eligible for child support at the time of the application was made “in obiter.” The court stated that D.B.S. did not stand for the proposition that courts can only retroactively vary child support while the child beneficiary is a “child of the marriage.” The court queried if it was time to revisit the issue as a fair, large and liberal interpretation of the statute recognises that there is no bar to preventing consideration of historical child support for variation applications. The court left this issue to be determined in another case.

[23] Once a court determines that there is legislative authority to order retroactive child support, the court must then consider whether a court should order retroactive child support in the circumstances of the case. The D.B.S. factors apply namely, is the recipient parent's delay in seeking variation reasonable in the circumstances, the payor parent's conduct, the circumstances of the child, and whether any hardship would result from a retroactive award.

4.2 (b) Delay

[24] With respect to delay, the court opined that the reason for the delay must be understandable. A delay will only be prejudicial if it is deemed unreasonable and taking into account the social context. The court gave examples of a delay that is motivated by any of the following reasons to be accepted as justifying a delayed application:

1. fear of reprisal/violence from the payor parent;
2. prohibitive costs of litigation or fear of protracted litigation;
3. lack of information or misinformation over the payor parent's income;
4. fear of counter-application for custody;
5. the payor leaving the jurisdiction or recipient unable to contact payor;
6. illness/disability of a child or the custodian;
7. lack of emotional means; wanting the child and the payor to maintain a positive relationship or avoid the child's involvement;
8. ongoing discussions in view of reconciliation, settlement negotiations, or mediation; and
9. the deliberate delay of the application or the trial by the payor.

[25] The court also stated that it was generally a good idea to seek child support as soon as possible, but it was unfair to bar a parent from applying for child support because they put their safety and the safety of their children ahead of financial needs or because they could not access the justice system earlier.

[26] Courts should also pay attention to the length of the delay after the beneficiary ceased being an eligible child or after the reason that caused the delay has ceased to exist. The longer the delay, the more weight may go against the justification.

4.2 (c) Blameworthy conduct

[27] With respect to the issue of blameworthy conduct, the court reiterated that an order for retroactive child support will commonly be appropriate where the payor parent fails to disclose increases in their income. The court also noted that in D.B.S. that court adopted an expansive definition of blameworthy conduct as, “anything that privileges the payor parent’s own interests over [their] children’s rights to an appropriate amount of support.”

[28] The court states that the objective of the child support guidelines is to provide payor parents with certainty and predictability that any material change in income should be disclosed and lead to a change in child support payments. Therefore, payor’s conduct may be presumptively reasonable if they conform to an order or agreement, but only if there is no change in their income.

[29] The court emphasised that a finding of blameworthy conduct does not automatically trigger the payor’s obligation to pay retroactive child support. But where present, blameworthy conduct weighs in favour of an award and may also result in expanding the temporal scope of the award.

4.2 (d) Circumstances of the child

[30] The court explained that if there has been a financial hardship present during the child’s childhood or if the child has a present need for funds, this weighs in favour of not only an award but also of extending the temporal reach of the award. This factor plays an important role in applications for historical child support.

[31] The court noted that there were many circumstances where a parent absorbs the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is no principled reason why a parent should receive less support as a result of choices that protect their child.

[32] The fact that a parent will benefit indirectly is not a reason to refuse to make an award for child support.

[33] Further, the fact that a child does not suffer hardship because of their parent’s sacrifice is not one that weighs against awarding retroactive support or historical support. Rather, the recipient parent’s hardship, like that of the child, weighs in favour of the retroactive support award and an enlarged scope.

4.2 (e) Hardship to payor

[34] If a retroactive award would cause the payor undue hardship and if the other factors do not militate against it, this factor may weigh against an award or affect its temporal scope to achieve a fair result. But 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. In all cases, hardship can be addressed in the from of payment.

[35] While the focus is on the hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but not paid. It must be taken into account that the payor had the full 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 purchase of the very property which may now have to be sold.

[36] The court noted that the hardship caused to the child and the recipient parent is a crucial part of the equation. With historical awards, there may be a longer period of unpaid child support, resulting in larger amounts and greater hardship on all sides. All of which increases the need to see the full picture and assess hardship based on all the circumstances.

4.2 (f) Date of Retroactivity

[37] In D.B.S. the court held that the date to which child support should be retroactive is, by default, the date of effective notice. The court in [Michel v. Graydon, 2020 SCC 24] opined that based on the majority decision in D.B.S., it was explicit that the date of effective notice was a compromise between the date of the recipient’s application for child support and the date the amount of child support ought to have increased. D.B.S. also set a “soft limit” or rough guideline for recovery of 3 years.

[38] The court noted that the idea behind some form of notice is fairness: it is having and sharing accurate information so everyone can meet their legal obligations and plan accordingly. Payors should be able to rely on the fact that the payments made are in good faith and based on accurate information are meeting their legal obligations. Recipient parents should be able to rely on the fact that the amounts paid are what is owed.

[39] Justice Martin, in her concurring reasons, stated that it was time to ask why the retroactivity of child support awards should not also correspond to the date when the support ought to have been paid. She opined that today parents know they are liable to pay child support in accordance with the tables in the child support guidelines and their actual income and that they will be held accountable for underpayment, even, if enforcement of their obligations may not always be automatic.

5. Application of legal principles to the facts

5.1 Is the mother entitled to a retroactive historical child support order?

[40] Section 36 (2.1) of the Family Law Act provides that if the court is satisfied that there has been a change in circumstances, within the meaning of the child support guidelines, the court may discharge, vary or suspend a term of the order, prospectively or retroactively.

[41] In this case, Laura was 25 years old and had almost completed her post-secondary education when the mother began this Motion to Change.

[42] Based on the wording of the legislation there is no impediment to the court ordering historical child support.

[43] Counsel for the father has conceded this issue as he agrees the father is required to pay retroactive child support but disputes the date of retroactivity.

5.2 What amount of retroactive child support should be ordered and retroactive to what date?

5.2 (a) Reasonable Delay

[44] The mother outlines that she delayed bringing this Motion to Change for several reasons.

[45] The mother deposes that her relationship with the father before separation was volatile and she was afraid of re-engaging with the father to ask for financial disclosure subsequent to the 2004 final order due to the potential for violence. They were not on speaking terms and had very little contact after the separation.

[46] The 2004 final order required that the father keep the mother advised of his current address and telephone numbers. The mother deposes that the father did not do this.

[47] I note that the 2004 final order has a different address than the father’s current address in these proceedings. The father did not present any evidence that he kept the mother advised of any changes in his current address.

[48] In 2012, the mother attempted to file a Motion to Change the 2004 final order as she had some information that the father’s income may have increased due to his lifestyle. She deposes that she was given incorrect legal advice by the pro bono law students at the court namely, that she could not proceed without knowledge of the father’s address for service.

[49] The mother attached to her January 10, 2021 affidavit as exhibit “c” a copy of her draft affidavit dated August 12, 2012. At the time, although the mother was not aware of the father’s address, she did have information as to where he worked and does list the father’s employer’s address on her affidavit.

[50] Due to the mother’s lack of financial means, she did not pursue obtaining another opinion regarding how to serve the father and proceed with her Motion to Change.

[51] In 2015, Laura reached out to her father and attempted to re-establish a relationship. The mother decided not to again attempt to ascertain the father’s whereabouts as she wanted to give Laura an opportunity of reconnecting with her father.

[52] Laura began to speak to her father in 2015 and they would occasionally spend time together but it was strained. As of the summer of 2018, almost all contact stopped. The father did not acknowledge Laura’s graduation from University in December 2019.

[53] The mother began this Motion to Change shortly after it was clear that there was no relationship between Laura and her father and just before she graduated from university.

[54] The father does not dispute that he did not advise the mother of any changes of his address. He deposes that he moved often and failed to report where he was living. However, he deposes that the mother and/or Laura were aware of his email address, social media and his telephone number.

[55] It is the father’s position that the mother delayed in commencing a Motion to Change because he was contributing to Laura’s expenses over the years and funded several of her trips over the years.

[56] Applying the framework set out in [Michel v. Graydon, 2020 SCC 24], I find that the mother had understandable reasons for not pursuing a Motion to Change earlier. The onus was on the father to not only keep the mother advised of his address but also to provide financial disclosure in accordance with the child support guidelines.

[57] The father cannot now complain that the mother delayed in commencing a Motion to Change when his failure to provide his address and financial disclosure accounts for the delay in the mother commencing this proceeding.

[58] Therefore, I find that the mother’s delay was understandable and reasonable.

5.2 (b) Blameworthy conduct

[59] The 2004 final order was based on the father’s income of $26,032.11.

[60] The father has provided disclosure of his income since that order as follows:

Year	Father’s income	Child support payable per child support guidelines	Child support paid	Yearly Overpayment/underpayment of child support
2004	$25,412	$232	$232	n/a
2005	$8,248	$232	$232	n/a
2006	unknown	unknown	$232	n/a
2007	$15,280	$128	$232	($1,248)
2008	$50,263	$465	$232	$2,796
2009	$18,996	$164	$232	($816)
2010	$53,155	$492	$232	$3,120
2011	$66,332	$606.25	$232	$4,491
2012	$59,180	$537.76	$232	$3,669.12
2013	$67,497	$617.08	$232	$4,620.96
2014	$62,889	$573	$232	$4,092
2015	$62,108	$565.97	$232	$4,007.64
2016	$67,007	$613.06	$232	$4,572.72
2017	$71,613	$668.88	$232	$5,242.56
2018	$63,897	$593.79	$232	$4,341.48

Based on the father’s actual income, the amount of child support that the father should have paid retroactive to 2007 is $43,437.28.

[61] The father was aware or should have been aware that the amount of child support he was required to pay was based on his income. That was the basis of the 2004 final order. The father was aware or should have been aware that as his income increased so should his child support.

[62] The father failed to disclose the significant increase in his income for over 10 years.

[63] Although Laura agrees that her father took her on several trips with his new family, this is not a substitute for paying the amount of child support he was obligated to pay and does not excuse him from failing to provide financial disclosure.

[64] The payor privileged himself and his new family over the obligation to pay the appropriate amount of child support to the mother to meet Laura’s needs.

[65] The fact that the retroactive child support order if made as of the date his income increased would be $43,437.28 is proof that he has significantly underpaid and neglected his child support obligation.

[66] This factor favours the granting of a retroactive child support order.

5.2 (c) Hardship to the child

[67] In [Michel v. Graydon, 2020 SCC 24], the court stated that hardship is not necessary to ground an order for retroactive child support, as there is nothing exceptional about relief that creates a systematic incentive for payor parents to meet their obligations in the first place.

[68] In this case, the mother required public support through Ontario Works and then in 2012 she qualified for assistance through the Ontario Disability Support Program. She clearly had very limited financial resources and struggled to support Laura.

[69] In Laura’s affidavit sworn January 10, 2021 she deposes her father took her on a few trips, she noticed that he, his wife and children wore designer clothes and that he would pay for everyone’s bill at a restaurant or bar. When she saw how he spent money, it upset her because she knew how she and her mother struggled during her childhood.

[70] In 2012, Laura asked her father to help her pay for a new computer for her post-secondary education. After this conversation, he cut off contact with her.

[71] In order to support herself through post-secondary education Laura was required to work part-time and during the summer and rely on student loans. She has made ongoing payments on her student loans. Her outstanding student loan debt is now $14,680.01.

[72] In August 2012, Laura sent her father a text reminding him that her tuition fees were due soon, he responded by text stating, “Do whatever you want.”

[73] In a letter from the mother and Laura’s family doctor, he outlines the difficulties both the mother and Laura have suffered that are stress related due to the lack of emotional and financial support from the father.

[74] I find that Laura has suffered hardship throughout her childhood and that her mother has tried her best to meet her needs based on her limited financial resources.

5.2 (d) Hardship to the payor

[75] As is clear from [Michel v. Graydon, 2020 SCC 24], even if there is potential hardship to the payor, but blameworthy conduct that precipitated or exacerbated the delay, it is open to the court to disregard any hardship to the payor.

[76] In this case, not only has the father engaged in blameworthy conduct by not disclosing the substantial increase in his income, he has been able to use that unpaid child support to purchase a property and live a comfortable life style that included on going on international trips with his common law spouse and their two children.

[77] According to his financial statement sworn February 12, 2020 the father owns the condominium in which he is living valued at $577,622 and a property in Columbia valued at $79,000. The total value of the properties is $656,622. The condominium has a mortgage of $310,904. Accordingly, he has equity of $345,718. His debts, excluding his mortgage total $8,466.53 and he has savings of $12,312.11.

[78] However, in his financial statement sworn September 4, 2020, his savings have deceased slightly to $10,017 but his debts have increased to $84,949. The major change appears to be a line of credit for $81,319.00. There is no explanation as to this line of credit and how it could have accumulated in just 6 months without any corresponding asset purchase.

[79] I find that the court can examine a payor’s assets to determine any hardship to him if he is required to pay retroactive child support. The father clearly has the means to pay a lump sum retroactive child support amount.

5.2 (e) Date of Retroactivity

[80] In this case and based on the analysis in [Michel v. Graydon, 2020 SCC 24], I find that the court is not required to only adjust child support retroactively for 3 years as was the previous usual approach.

[81] Counsel for father submits that any order should be retroactive only as of 2015 as that is the year the father’s income consistently increased.

[82] The father’s income has more than doubled as of 2008 except for the year 2009 for which he has been given a credit.

[83] I find that given the blameworthy conduct of the father that the order should be retroactive to 2008.

[84] The father provides proof of money orders that he paid directly to Laura from 2009 to 2010 that are marked as, “child support” and total $5,490. I am not prepared to give the father a credit for these funds which Laura assumed were gifts and that she used of incidental expenses.

[85] The 2004 final order required that the father pay child support to the mother through the Family Responsibility Office. There is no explanation from the father as to why he would pay money directly to Laura. He never requested that the mother acknowledge that she considered these payments to be child support or that she received any of these funds to support Laura.

[86] The father provided proof of e-transfers paid to Laura from May 2017 to January 2020 that total $6,600. For the same reasons, I am not prepared to credit these amounts to the child support that the father owed to the mother.

6. Should the father be required to contribute to Laura’s post-secondary expenses?

[87] The father was aware as of 2012, that Laura was requesting that he assist her with her post-secondary expense.

[88] Unfortunately, as it was agreed that this Motion to Change would proceed only based on the affidavits that were filed, some issues of credibility and explanations were not before the court.

[89] Although it is submitted by counsel for the mother that Laura that she considered these gifts. Laura makes the same statement in her affidavit.

[90] However, I find that on a balance of probabilities the father gave these monies directly to Laura to assist her with her education expenses. The timing of the e-transfers does not coincide with any special occasions such as a birthday or Christmas. But on the other hand, there is no evidence on the e-transfer or any accompanying email explaining the purpose of these funds that appear to be random. The father had the onus of proving the purpose of the e-transfers but failed to do so.

[91] In fairness to the father, I am prepared to give him some credit for the $6,600 he paid Laura between May 2017 and January 2020. Quite arbitrarily since I have no evidence on this issue, I am prepared to credit him of $4,600.00. I have deducted $2,000 being $500 for each of the 4 years as an appropriate amount for a gift.

[92] Laura has calculated that based on the incomes of the parties from 2012 to 2019, the father’s share of the total costs for tuition and some minimum incidentals is $10,636.26. She has set out separately her contributions.

[93] What is unclear from the affidavits and calculations, is whether in addition to the calculation of the father’s share that this includes the amounts owing by Laura on her student loan or if the loan is for the expenses for tuition and incidental expenses and that the total obligation of the father is $10,636.26.

[94] There was no dispute that these expenses were reasonable or that Laura’s contribution was not reasonable.

[95] The father was given notice by Laura in 2012 that she wished him to contribute to her post-secondary expenses.

[96] The delay in pursuing these expenses was understandable by the mother, the claim was made shortly before Laura competed her studies and based on the father’s income, he has the means to assist her with this expense.

[97] For the same reasons outlined with respect to retroactive child support, I find that the father engaged in blameworthy conduct in not paying his appropriate share of the post-secondary expenses.

8. Order

[98] There will be an order as follows:

1. The Respondent shall pay to the Applicant retroactive child support of $45,437.28 within 60 days.
2. The Respondent shall pay to the Applicant retroactive section 7 expenses as his share of the child, Laura Munoz’s post-secondary expenses in the amount of $6,036.26 within 60 days.
3. Support Deduction Order to issue.
4. If there is an error in my calculation with respect to the amounts owing with respect to the section 7 expenses, a 14B with an affidavit not to exceed 3 pages is to be submitted within 14 days by the Applicant and the Respondent shall have 14 days thereafter to respond.

[99] As the successful party, the Applicant is presumed to be entitled to costs. If counsel cannot resolve the issues of costs, counsel for the Applicant shall submit written costs submissions not to exceed 3 pages with a Bill of Costs and any Offer to Settle attached within 30 days. Counsel for the Respondent shall submit her written response not to exceed 3 pages with any Offer to Settle and a Bill of Costs, if desired, within 30 days of receipt of the Applicant’s costs submissions. All submissions to be filed with the trial coordinator.

Released: February 9, 2021 Signed: Justice Roselyn Zisman