DATE: April 8, 2022 COURT FILE NO. DR42237/22
ONTARIO COURT OF JUSTICE
B E T W E E N:
CHARMAINE LOBBAN
ACTING IN PERSON
CLAIMANT
- and -
MARLON LOBBAN
ACTING IN PERSON
RESPONDENT
HEARD: APRIL 4, 2022
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
[1] The claimant has brought an application pursuant to the Interjurisdictional Support Orders Act (ISOA) seeking an order that the respondent pay her child support for the parties’ two children, who are 15 and 17 years old (the children), retroactive to July 4, 2017.
[2] The respondent has made an undue hardship claim pursuant to section 10 of the Child Support Guidelines (the guidelines). He asks the court to order child support of $550 each month and only on a go-forward basis. He seeks a dismissal of the balance of the claimant’s application.
[3] The parties both filed affidavit evidence and significant financial disclosure. The respondent appeared at court on the return date and was permitted to give supplementary oral evidence.
[4] The issues for this court to determine are:
a) When should the child support order start?
b) What amount of child support should the respondent pay pursuant to the guidelines for each year that the court determines that support is payable?
c) Has the respondent established a claim for undue hardship, and, if so, what adjustment, if any, should be made to the child support order?
d) What support credits should the respondent receive for direct support payments made to the claimant or to the children?
Part Two – Brief background
[5] The parties are married. They have lived separate and apart since July 4, 2017.
[6] The claimant lives in British Columbia. The respondent lives in Ontario.
[7] The parties are the biological parents of the children and an adult child. The children have lived with the claimant since the parties separated.
[8] The parents both have 22-year-old children from other relationships.
[9] The parties agree that the respondent paid no child support to the claimant in 2017. In January 2018, he sent an etransfer for $500 to the parties’ adult son to pass on to the claimant. In August 2018, the respondent started to send more regular etransfers for support through the parties’ adult child. The claimant attached copies of these etransfers to her affidavit. The total of the etransfers are $8,084. The last etransfer was in March 2021. The respondent agreed that this was an accurate total. He deposed in his November 2021 affidavit that he also bought gifts for the children totaling $746. He testified at the hearing that he has paid for some additional gifts and activities for the children.
[10] The claimant completed this ISOA application in British Columbia in November 2020.
[11] The matter originally came before the Superior Court of Justice (Family Branch) in Oshawa. On December 14, 2021, the case was transferred to this court when it was determined that the respondent lived in Toronto.
[12] The Notice of Continuation of Hearing was issued in this court on January 11, 2022.
Part Three – The respondent’s income
[13] The respondent has worked steadily for the same employer since shortly after the parties separated. He filed his annual income tax returns and notices of assessment for the years 2017 to 2020 that showed the following annual income:
2017 $44,585 2018 $73,282 2019 $99,590 2020 $114,353
[14] The court accepts these figures as the respondent’s annual income from 2017 to 2020.
[15] At the hearing, the court asked the respondent to provide it with his 2021 T4 statement from his employer and his most recent 2022 pay stub. He provided these to the court on April 6, 2022.
[16] The respondent’s 2021 T4 shows income of $115,628. The court finds that this was his 2021 income.
[17] The respondent’s most recent pay stub for 2022 shows year-to-date income of $37,414, as of March 26, 2022. This is the best evidence of the respondent’s current income. Courts should use a payor’s current year income when that information is available. See: Lewis v. Adesanya, 2014 ONCJ 326. The respondent’s year-to-date pay stub includes bonus payments totalling $8,112 that likely will not recur during the year. Taking out the bonuses from the projected income, the respondent’s 2022 income projects to $117,208. [1] Then the bonuses need to be added back in, for a total 2022 income of $125,320. The court will use this income to calculate child support starting on January 1, 2022.
[18] The respondent submits that his income has been unusually high since he has worked overtime for the past four years. He asks the court to assess his income based on his base salary of $49,670. This submission has no merit. Where, as here, the actual amount of income earned in a prior year is known, it is that amount that should determine the quantum of support that should have been paid. See: Vanos v. Vanos, 2010 ONCA 876; Wright v. Christie, 2011 ONCJ 109. The respondent’s income has steadily increased for several years. There is no evidence that this trend will change.
Part Four – The statutory pathway
[19] Subrule 37 (7) of the Ontario Family Law Rules (all reference to rules in this decision are to the Family Law Rules) sets out that unless the court orders otherwise under subrule 37 (9), the application shall be dealt with on the basis of written documents without the parties or their lawyers needing to come to court.
[20] Subrule 37 (9) of the rules sets out that the court may order an oral hearing, on the respondent’s motion or on its own initiative, if it is satisfied that an oral hearing is necessary to deal with the case justly. The court determined that permitting the respondent to give brief oral evidence in this case was just. The court required more information about the respondent’s 2021 and 2022 income and additional evidence regarding the factors involved in assessing retroactive support claims.
[21] Paragraph 1 of section 13 of the ISOA sets out that in determining a child’s entitlement to support, the Ontario court shall first apply Ontario law, but if the child is not entitled to support under Ontario law, the Ontario court shall apply the law of the jurisdiction in which the child is habitually resident. There was no issue that the children are entitled to support under Ontario law.
[22] Paragraph 3 of section 13 of the ISOA sets out that if entitlement to child support is established, the Ontario court shall apply Ontario law in determining the amount of support for the claimant.
[23] Section 14 of the ISOA sets out the types of orders the court can make as follows:
Order
14 (1) On the conclusion of a hearing, the Ontario court may, in respect of a claimant, a child or both,
(a) make a support order;
(b) make a temporary support order and adjourn the hearing to a specified date;
(c) adjourn the hearing to a specified date without making a temporary support order; or
(d) refuse to make a support order.
Retroactivity
(2) The Ontario court may make a retroactive support order.
Periodic payments or lump sum
(3) A support order may require support to be paid in periodic payments, as a lump sum, or both.
Choice of law
(3.1) A support order shall specify the law applied in making the order, and if the order does not specify the law applied, the order is deemed to have been made under Ontario law.
Reasons for refusal
(4) If the Ontario court refuses to make a support order, it shall give written reasons for its decision and send them to the designated authority.
[24] Section 31 of the Family Law Act (the Act) sets out that every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her eligible children.
[25] Subsection 31 (7) of the Act sets out that an order for the support of a child should recognize that each parent has an obligation to provide support for the child and should apportion the obligation according to the guidelines.
[26] Subsection 31 (11) of the Act sets out that a court making an order for the support of a child shall do so in accordance with the guidelines.
[27] Clause 34 (1) (f) of the Act provides the jurisdiction for a court to order that support be paid in respect of any period before the date of the order.
[28] Subsection 3 (1) of the guidelines reads as follows:
Presumptive rule
3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
Part Five – The start date for support
5.1 Legal considerations
[29] Any support claimed after an application is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon, 2005 ONCA 543.
[30] In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for applications to retroactively increase support in 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. 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.
[31] This framework in Colucci addresses a request to retroactively increase the support contained in an order or an agreement. Courts have found that this framework should also be applied, with necessary modifications, for an original request for retroactive support. See: M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189.
[32] In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. 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 [2] will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 25. 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.
[33] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (Michel - par. 25).
[34] 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 – par. 132).
[35] Retroactive awards are not exceptional. They can always be avoided by proper payment (D.B.S. - par. 97).
[36] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair (D.B.S. - par. 121).
[37] 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).
[38] The retroactive support analysis equally applies to claims for retroactive section 7 expenses. See: Smith v. Selig (2008) 2008 NSCA 54, 56 R.F.L. (6th) 8 (NSCA); Hetherington v. Tapping, 2007 BCSC 209; Surerus-Mills v. Mills, [2006] O.J. No. 3839 (SCJ).
5.2 Analysis
[39] The claimant deposed that after the respondent left British Columbia in July 2017, his child support payments were sporadic despite her requesting child support. She said that the respondent blocked her phone number and that her text messages to him did not go through.
[40] The respondent denied that the claimant asked him for child support before starting court proceedings. He stated that he first learned of a claim for support when he was contacted by the claimant’s process server on March 21, 2021. This appeared to be in relation to the case she started in British Columbia.
[41] The court finds the claimant’s evidence more credible than the respondent’s. The respondent’s credibility is seriously damaged due to his serious underpayment of child support for many years (the details will be provided below). He has gone lengthy periods without paying any child support, and even when he has paid child support, it has been seriously deficient. It is a logical inference that when child support starting flowing (sporadically at first in January 2018), it would have been in response to a request from the claimant. Lastly, the evidence indicates that the respondent avoided service when the claimant tried to serve him. This appears to be part of a pattern of the respondent avoiding his child support obligations.
[42] The court accepted the claimant’s evidence where it conflicted with the respondent’s.
[43] The court finds that the date of effective notice was, at the latest, January 1, 2018.
[44] The next step is to determine if the court should depart from the presumptive date of retroactivity because the result would otherwise be unfair. To do this, the court must look at the D.B.S. factors as explained in Michel.
[45] The first factor is delay. The Supreme Court of Canada had the following to say about delay in Michel:
a) Courts should examine whether the reason for delay in bringing the application 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 (Michel - 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 (Michel - 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..
d) Lack of information or misinformation over the payor parent’s income can be an understandable reason for delay.
[46] The claimant partially explained her delay in bringing her application. She said that she started her case in British Columbia but was informed that she had to use the interjurisdictional process. Much of the delay once she started this case was institutional as she completed her application in British Columbia in November 2020. Her ISOA materials were not served on the respondent until later in 2021. It is not her fault that it took until April 4, 2022 for her case to come before this court.
[47] It can also be inferred from the evidence that the claimant delayed in bringing the application because she did not have timely financial disclosure from the respondent. It is a reasonable assumption that she believed that the respondent was earning income that was comparable to the income he had been earning when he had lived in British Columbia. The respondent deposed that his unemployment issues became a big stress in their marriage – that he could only find “part-time jobs here and there” when he lived in British Columbia.
[48] The respondent’s annual income significantly increased starting in 2018. There is no evidence that he notified the claimant about this in a timely manner. He acknowledged that he had little direct communication with the claimant – he even sent support through their adult child. If the respondent had provided the claimant with timely financial disclosure, she might have started her application earlier. [3]
[49] The second factor is conduct. The court had the following to say about this in Michel:
a) Courts have been too hesitant to apply the expansive definition of blameworthy conduct set out in D.B.S. out of fear that any change in the payor’s income which was not disclosed to the recipient would constitute blameworthy conduct (par. 116).
b) The failure to disclose actual income, a fact within the knowledge of the payor, is a failure of a significant obligation and is often at the root cause of a delayed application (par. 116).
c) Courts should not take a subjective approach to blameworthy conduct and try to ascertain intention. Intent can be a basis on which to increase blameworthiness, but the primary focus needs to be on the payor’s actions and their consequences (par. 118).
[50] The respondent engaged in blameworthy conduct. He did not provide timely financial disclosure to the claimant. His first etransfer to the claimant was in January 2018. He didn’t make another etransfer until August 2018 despite earning $73,282 that year. His last etransfer to the claimant was in March 2021 despite his earning $115,628 that year.
[51] The amount of support paid by the respondent was far below the guidelines table amounts. He paid about $8,084 from July 2017 until March 2021, when he sent his last etransfer. This averages out to about $180 each month for these 45 months. The respondent knew or ought to have known that this level of support was grossly inadequate based on his actual income. He was not a stranger to the guidelines. He had previously been in litigation with the mother of his other child and was required by that court to pay guidelines table support and contribute to that child’s section 7 expenses.
[52] The respondent has preferred his own interests to those of the children. This is blameworthy conduct.
[53] The third factor is the circumstances of the children. Michel set out the following about this factor:
a) There are plenty of circumstances where a parent will absorb the hardship that accompanies a dearth of child support to prioritize their child’s well-being. There is absolutely no principled reason why this parent should receive any less support as a result of choices that protect the child (par. 123).
b) The fact that the recipient will indirectly benefit is not a reason to refuse to make the award of support (par. 123).
[54] The claimant led no specific evidence about the circumstances of the children. However, it is apparent that she has absorbed a disproportionate burden of their support.
[55] The fourth factor is hardship. The court in Michel made the following observations about this factor:
a) 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 (par. 124).
b) In all cases, hardship may be addressed by the form of payment (par. 124).
c) While the focus is on 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 unpaid (par. 125).
d) 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 (par. 125). This is a crucial part of the equation (par. 126).
[56] The respondent might suffer some hardship if a court makes the retroactive order sought by the claimant. However, he has over $40,000 in savings that can be applied to the arrears – savings that have been accumulated at the expense of the children. The court also has much more sympathy for the claimant and the children than it does for the respondent. The respondent is the author of his own misfortune. He deliberately paid a paltry amount of support when one considers the significant income he has been earning. He neglected his financial responsibilities towards the children. It would be a hardship to the claimant if she did not receive the proper support owed.
[57] It might take a long time for the respondent to pay his debt to the claimant, but it is a debt that should be paid.
[58] The court will address any hardship to the respondent by permitting him to pay his arrears over time.
[59] The court finds that fairness dictates that it not deviate from the presumptive date of child support. The child support order shall start on January 1, 2018.
Part Six – Should the court exercise its discretion to reduce support under section 10 of the guidelines?
[60] The guidelines table amounts for two children based on the respondent’s annual income starting in 2018 are as follows:
2018 - $73,282 $1,113 each month 2019 - $99,590 $1,466 each month 2020 - $114,353 $1,647 each month 2021 - $115,628 $1,663 each month 2022 - $125,329 $1,781 each month
[61] The respondent claims undue hardship pursuant to section 10 of the guidelines and asks to pay $550 each month.
[62] Section 10 of the guidelines reads as follows:
Undue hardship
10 (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising parenting time with a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.
(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.
(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.
[63] It is very difficult to make out a successful undue hardship claim under section 10 of the guidelines. It is a more stringent standard than proving hardship in a retroactive support analysis. There are three parts to the test:
The person making this claim must show that there are circumstances that could create undue hardship.
If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party’s.
If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties.
See: Matthews v. Matthews.
[64] The respondent must prove more than hardship. He must show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient. See: Hanmore v. Hanmore, 2000 ABCA 57.
[65] The respondent has the onus of providing adequate supporting documentation to prove his undue hardship claim. See: Van Gool v. Van Gool.
[66] The respondent argued three factors in support of his undue hardship claim. He said that he continues to pay child support for his 22-year-old child who is in her last year of college. However, he is paying far less for that child than he should. His child support, pursuant to a 2008 court order, is premised on his earning annual income of $37,000. The respondent also conceded that those payments have often been in arrears. He next submitted that he will have high transportation costs visiting the children in British Columbia. However, he has not traveled to British Columbia to see them since he separated from the claimant in 2017. Lastly, he said that he is suffering undue hardship because he cannot afford to purchase a home and lives with his family.
[67] None of these factors are sufficient to establish undue hardship under section 10 of the guidelines. These factors are not exceptional, excessive or disproportionate.
[68] The respondent also led no evidence that his standard of living is lower than the claimant’s.
[69] The respondent’s claim of undue hardship is dismissed.
Part Seven – Section 7 expenses
7.1 Legal considerations
[70] 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.
[71] In awarding section 7 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 section 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 clause 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. See: Titova v. Titov, 2012 ONCA 864.
[72] The relevant provisions of the guidelines read as follows:
- (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:
(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.
The guidelines define “extraordinary” as follows:
(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the 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 paragraph (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 spouse requesting the amount, including the amount that the 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 or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
7.2 The claimant’s annual income
[73] The claimant’s income tax returns filed show that she earned $54,907 in 2018 and $65,137 in 2019. She filed a November 30, 2020 pay stub. It revealed that her 2020 income projected to $64,635.
7.3 Eligible section 7 expenses
[74] The claimant claims dental fees for the younger child that are not covered by insurance. These are eligible section 7 expenses.
[75] The claimant claimed before and after school costs of $200 each month for both children from 2018 to 2021.
[76] The respondent submits that these expenses were not reasonable and necessary given the ages of the children. The claimant gave no explanation for why these expenses were reasonable and necessary.
[77] For the most part, the court agrees with the respondent’s submissions. The court will only allow the childcare expense for the younger child for 2018 and 2019 when she was 11-12 years old and not for 2020 and 2021. It will not allow the claimed childcare expenses for the older child.
[78] The claimant made claims for the children’s soccer, volleyball and martial arts expenses. She also made claims for school activities and fees and a laptop. The court finds that these are ordinary expenses and not extraordinary expenses as defined in the guidelines. The claimant can reasonably cover these expenses, taking into account her income and the guidelines table amount of support. In making this determination the court considered the factors set out in clause 7 (1.1) (b) of the guidelines.
[79] The eligible section 7 expenses for the children are as follows:
2018 Childcare - $2,400 2019 Childcare - $2,400 2020 Dental (younger child) - $756
[80] The guiding principle in subsection 7 (2) of the guidelines 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. The court sees no reason to deviate from the guiding principle in this case.
[81] Subsection 7 (3) of the guidelines informs the court that it is the net and not the gross amount of the expense that should be apportioned. Tax benefits and credits related to the section 7 expense must be taken into consideration.
[82] A software analysis shows that the respondent’s proportionate share of the net section 7 expenses is as follows for each year: [4]
2018 $41 each month $492 for the year 2019 $12 each month $144 for the year 2020 $40 each month $480 for the year
[83] The respondent acknowledged that the children need orthodontic work. He agreed to cover the children on his medical, dental and extended health plan that is available to him through his employment. He deposed that his Plan will cover up to $2,000 per child for orthodontic costs. The claimant, he says, also has insurance coverage.
[84] An order will go that the respondent shall designate and maintain the children as beneficiaries on any medical, dental or extended health plan he has available to him through his employment for the provision of necessities for the children. [5] He is to provide proof of this coverage to the claimant. He shall also be required to pay 50% of the orthodontic costs for the children not covered by any medical, dental or extended health coverage plan of the parties within 30 days of receiving receipts from the claimant.
Part Eight – Support credits
[85] The claimant deposed in her application dated November 30, 2020 that the respondent had paid her $6,284 through etransfers. The respondent put this figure at closer to $7,000 in his November 2021 affidavit and claimed that he made further direct payments of $761 for the children. He deposed that he has not made further payments to the mother since that affidavit was sworn. He testified that he has bought the children additional gifts The claimant attached copies of the etransfers to her affidavit sworn on June 25, 2021 – these include additional payments made by the respondent after she started her ISOA appliction. They added up to $8,084. The court finds that this is the most accurate evidence of how much money the respondent paid through the etransfers.
[86] The court recognizes that the respondent also made some direct purchases and paid for some gifts for the children. The court will provide the father with a total credit of $10,000, inclusive of the etransfers and direct payments to the children.
Part Nine – Payment of arrears
[87] This order will create immediate and substantial arrears. The court calculates those arrears as follows:
Total support accrued since January 1, 2018: $78,908 as calculated below
2018 Table amount – $13,356 plus section 7 expenses of $492 for a total of $13,848 2019 Table amount – $17,592 plus section 7 expenses of $144 for a total of $17,736 2020 Table amount – $19,764 plus section 7 expenses of $480 for a total of $20,244 2021 Table amount – $19,956 2022 Table amount – 4 months @ $1,781 each month for a total of $7,124
Less support credits: $10,000
Balance = $68,908
[88] The order shall provide that the respondent shall pay the claimant $10,000 towards the arrears by May 15, 2022, a further $10,000 by August 31, 2022 and a further $10,000 by November 30, 2022. He shall pay the balance of the arrears at the rate of $1,000 each month, starting on January 1, 2023. If he defaults on any arrears or ongoing support payments, the entire amount of the arrears then owing shall immediately become due and payable.
Part Ten – Conclusion
[89] A final order shall go on the following terms:
a) The respondent shall pay child support to the claimant in the amount of $13,848 for 2018. This is calculated by adding the guidelines table amount for two children of $1,114 each month, based on the respondent’s 2018 income of $73,282, together with his contribution of $492 towards the children’s section 7 expenses.
b) The respondent shall pay child support to the claimant in the amount of $17,736 for 2019. This is calculated by adding the guidelines table amount for two children of $1,466 each month, based on the respondent’s 2019 income of $99,590, together with his contribution of $144 towards the children’s section 7 expenses.
c) The respondent shall pay child support to the claimant in the amount of $20,244 for 2020. This is calculated by adding the guidelines table amount for two children of $1,648 each month, based on the respondent’s 2020 income of $114,353, together with his contribution of $480 towards the children’s section 7 expenses.
d) The respondent shall pay child support to the claimant in the amount of $19,956 for 2021. This is the guidelines table amount for two children of $1,663 each month, based on the respondent’s 2021 income of $115,628.
e) Starting on January 1, 2022, the respondent shall pay the claimant child support in the amount of $1,781 each month. This is the guidelines table amount for two children based on the respondent’s projected 2022 income of $125,320.
f) The respondent shall be credited with the amount of $10,000 for child support paid on behalf of the children.
g) The respondent may pay the arrears created by this order to the claimant as follows:
i) $10,000 by May 31, 2022.
ii) $10,000 by August 31, 2022.
iii) $10,000 by November 30, 2022.
iv) The balance of the arrears may be paid at the rate of $1,000 each month, starting on January 1, 2023.
v) If the respondent defaults on any arrears or ongoing payment, the entire amount of the arrears then owing, shall immediately become due and payable.
h) The respondent shall designate and maintain the children as beneficiaries on any medical, dental or extended health coverage plan that he has available to him through his place of employment and provide proof of this to the claimant.
i) The respondent shall pay 50% of any of the children’s orthodontic expenses not covered by any of the parties’ medical, dental or extended health plans within 30 days of the claimant providing him with the receipts.
j) A support deduction order shall issue.
k) The parties shall exchange complete copies of their income tax returns and notices of assessment by June 30th each year.
l) This endorsement shall be sent by court staff to the parties and to the Designated Authority of Ontario - Family Responsibility Office, pursuant to the ISOA.
[90] The respondent is cautioned that he must make all future support payments to the Family Responsibility Office, not directly to the claimant. If he does not do this, he runs the risk of not receiving credit for those payments.
Released: April 8, 2022 _____________________ Justice S.B. Sherr
[1] The court does this so that the bonuses are not multiplied by four in projecting the respondent’s income. They are only added in once.
[2] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised:
- Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
- The conduct of the payor parent.
- The circumstances of the child.
- The hardship that the retroactive award may entail.
[3] The claimant had the respondent’s 2017 to 2019 tax information once she started her application in November 2020.
[4] Copies of the software calculations will be provided with this decision
[5] This is pursuant to subsection 34 (2) of the Act. The Ontario Court of Justice cannot make this order except for the provision of necessities or to prevent the dependant from becoming or continuing to be a public charge.