COURT FILE NO. D40826/06 DATE: May 2, 2022
ONTARIO COURT OF JUSTICE
B E T W E E N:
SHIRLYN AUGUSTIN
APPLICANT
OLIVIA OPREA, for the APPLICANT
- and -
GODWIN ANIGOZE and JOANNA FERENSOWICZ
RESPONDENTS
THE RESPONDENTS ACTING IN PERSON
CATHY TSAGARIS, agent, FOR THE ASSIGNEE, THE CITY OF TORONTO
HEARD: April 26-27, 2022
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
[1] The applicant (Shirlyn) has brought a motion to change the child support provisions contained in the order of Justice Robert Spence, dated December 2, 2008 (the existing order).
[2] The existing order provides that the respondent, Godwin Anigozie (Godwin), pay child support to Shirlyn for their child Sade, now age 17, in the amount of $350 each month. The existing order stated that this was based on Godwin’s annual income of $32,000.
[3] At trial, Shirlyn asked the court to order child support retroactive to April 1, 2019, based on an imputed annual income to Godwin of $129,702.
[4] Shirlyn assigned her interest in support to the City of Toronto (the City) for the period from July 1, 2008 to January 31, 2017. The City participated at this trial and supported Shirlyn’s position.
[5] The respondent Joanna Ferensowicz (Joanna) is married to Godwin. She presently lives with Godwin and their four children in Nigeria. Justice Spence added her as a party on January 13, 2021, for the purpose of making disclosure orders respecting her. Shirlyn and the City did not object to Joanna fully participating in this trial.
[6] Godwin and Joanna asked the court to dismiss Shirlyn’s motion to change.
[7] The parties all testified and were cross-examined. No other witnesses were called. The trial was conducted by videoconference. Godwin and Joanna participated from Nigeria.
[8] The issues for the court to determine are:
a) At what level should the court assess Godwin’s income for the years that Shirlyn is seeking a change to the existing support order?
b) If support is to be increased, when should this increase start?
c) What are the eligible special and extraordinary expenses (section 7 expenses) for Sade pursuant to the Child Support Guidelines (the guidelines), and what share of these expenses, if any, should Godwin pay?
Part Two – Background facts
[9] Shirlyn and Godwin had a brief relationship in 2004. They did not cohabit. Sade is the only child that they had together.
[10] Shirlyn is 43 years old. She has a 14-year-old child from another relationship who lives with her and Sade in Toronto. Shirlyn is a stay-at-home mother and is in receipt of social assistance.
[11] Godwin is 54 years old. He immigrated to Canada in 1994. He is the father of seven children. They are Sade, his four children with Joanna and two children who have different mothers.
[12] Godwin is required to pay child support of $450 each month pursuant to a court order regarding his other child living in Canada.
[13] Godwin has lived in Nigeria since the spring of 2019. He said that he was moving back and forth between Canada and Nigeria between 2012 and 2019 – spending about 75% of the time in Nigeria. He said that he has been employed part-time in Nigeria as a purchaser for a company since he moved there in 2019.
[14] Joanna testified that she has had a relationship with Godwin since 2006. They were living together in Canada. She said that in January 2020, she and the children moved to live with Godwin in Nigeria. She said that their children attend on-line school in Canada from their home in Nigeria. She and Godwin hope to move back to Canada with their children soon.
[15] Joanna testified that she has not worked since 2004 or 2005 when she worked for a fitness company. She has stayed at home to raise her children. She said that she is presently looking for work in Nigeria.
[16] Joanna and Godwin were married on February 22, 2022 in Nigeria.
[17] Shirlyn issued an application for custody and child support in this court on March 29, 2006. Both Shirlyn and Godwin were represented by counsel.
[18] On December 2, 2008, Shirlyn and Godwin consented to the existing order.
[19] On September 28, 2018, Shirlyn brought a motion to change the parenting terms in the existing order. She asked that Godwin’s access with Sade be terminated. She sought no changes to the support order. Godwin responded by asking to change the support terms of the existing order and to rescind about $28,000 of support arrears. Both Shirlyn and Godwin were represented by counsel during this motion to change.
[20] On March 26, 2019, Shirlyn and Godwin consented to a final order changing the parenting terms in the existing order. Godwin agreed to withdraw his request to terminate child support and the existing arrears.
[21] Shirlyn brought this motion to change the child support provisions of the existing order on September 24, 2019. Godwin responded and was represented by counsel up until July 3, 2021. His counsel obtained an order on that date to be removed from the record. Since that date, Godwin has been self-represented.
[22] On January 24, 2020, on consent, Justice Robert Spence ordered Godwin to provide Shirlyn with specified financial disclosure.
[23] The case was then delayed due to the pandemic.
[24] The matter returned to court on October 15, 2020. The financial disclosure order had not been complied with. Justice Spence made another detailed financial disclosure order with a timeline for production.
[25] On January 13, 2021, Justice Spence added Joanna as a party and ordered both Godwin and Joanna to respond to reasonable disclosure requests from Shirlyn.
[26] On August 12, 2021, Justice Spence endorsed that Godwin had produced some disclosure through his previous lawyer and that Joanna had provided her 2015-2019 notices of assessments, but that none of the other financial disclosure requested by Shirlyn had been provided. He added that Joanna had advised the court that she was unable to obtain any further documentation because both she and Godwin were in Nigeria.
[27] On October 28, 2021, Justice Spence ordered Godwin and Joanna to jointly pay Shirlyn costs of $850 when they did not attend on the court date.
[28] No further financial disclosure was provided by Godwin or Joanna.
[29] The only financial statement filed by Godwin on this motion to change was sworn on December 7, 2019.
[30] Godwin has had a poor payment history. The Family Responsibility Office has had to enforce the existing order and a second Canadian support order for another of Godwin’s children. Between December 7, 2021 and March 3, 2022, Godwin made four substantial payments totaling $21,223.70 for support arrears pertaining to Sade. This cleared up the arrears owing to Shirlyn. He still owes the City of Toronto support arrears of $4,023.63 under its assignment of support for Sade.
[31] Godwin also made a substantial payment for the support arrears owing for his other child.
[32] Godwin testified that he had recently inherited two properties in Nigeria from his mother, who died in 2018. He said that he sold those properties to pay the support arrears.
Part Three – Godwin’s income
3.1 Godwin’s evidence
3.1.1 Employment history
[33] Godwin testified that he went to college for one year when he came to Canada in 1994. He said that he then worked in a factory for 6 or 7 years, earning about $25,000 annually.
[34] Godwin said that he started a cheque-cashing business in 2001 and ran it for three to four years. He said that he had problems with the business, lost its licence for a year or two, briefly had it restored, but then had it taken away again.
[35] Godwin’s notices of assessment for 2002, 2004 and 2005 show that he had no income during those years.
[36] Godwin said that he moved to the United States in 2009. He was convicted of fraud in 2010. He was ordered to pay restitution of over $76,795 and served 27 months in prison. This was a plea deal. Godwin testified that his mother paid his restitution and legal fees.
[37] Godwin said that he did not work between 2006 and 2019.
[38] Godwin said that he tried to start a shipping business in 2016. However, he abandoned this plan when support from his family and friends fell through. He said that the business never operated.
[39] Godwin testified that he obtained his present job in Nigeria as a purchaser in the spring of 2019. He said that it pays him an annual income of about $8,500 in Canadian dollars. He did not disclose this income in his financial statement. He provided no documentary evidence about this income at trial.
3.1.2 Godwin’s Canadian properties
[40] Godwin has owned three properties in the Greater Toronto Area since he came to Canada.
[41] Godwin testified that the first property (the Etobicoke property) was purchased in 1999 in his name for about $100,000. Godwin still owns this property. He has rented it out since it was purchased. He deposed that this has been his sole source of income for most years. He said that he presently receives $2,100 each month for rent.
[42] In response to queries about why the rent payments and associated expenses for the Etobicoke property are not shown in his bank account statements, Godwin said that he receives the rent in cash and also pays the property taxes and common element expenses in cash. When asked how he does this from Nigeria, Godwin said that he has a network of friends who do this for him. When asked how the mortgage of $775 each month is paid, Godwin said that his brother is taking care of that.
[43] These explanations, like many of the explanations Godwin provided at trial, strained credulity. Godwin provided no evidence of these money trails.
[44] Godwin testified that the Etobicoke property is now worth $450,000. Given the prices of homes in Toronto, it is likely worth far more than that.
[45] Godwin testified that the second property (the Eglinton property) was purchased in 2000, in his name for $105,000. He said that because of his financial difficulties, he sold this property in 2012 for $200,000. His explanation about where the net proceeds of sale went was unclear. He said that most of the sale proceeds went to his children and to expenses. No evidence of what Godwin did with the proceeds was provided.
[46] Godwin testified that the third property (the Woodbridge property) was purchased in 2004 in his name for $444,000. Godwin still owns this property. He said that it is now worth over two million dollars. It presently has a mortgage of about $510,000 on it. This is the home that he lived in with Joanna and their four children while they were living in Canada.
[47] Godwin said that these three properties were purchased by his mother – he is not the real owner of them. He said that his mother and other family members have assisted him in paying the expenses for these properties. Godwin produced no evidence, such as a trust agreement, to support his contention that he is not the sole owner of these properties. He did not assert that other people had an interest in ownership in the properties until this trial, despite having had many opportunities to do so. In his December 7, 2019 affidavit, he repeatedly refers to the three properties as his properties. His evidence was not credible.
[48] Godwin was asked why these properties were put in his name. He said that banks would not give a mortgage to his mother because she lived in Nigeria. When asked how he qualified for a mortgage in 2004, Godwin said that he was running the cheque-cashing business. However, his Notices of Assessment showed no income for those years. He likely either misrepresented his income to the Canada Revenue Agency (CRA) or to the mortgage lender – perhaps to both.
[49] Godwin could also not explain how he was able to refinance the mortgage on the Woodbridge property when his annual income only consisted of $15,300 for net rental income from the Etobicoke property.
[50] Godwin did not produce any of the mortgage applications requested by Shirlyn. The court draws a negative inference from his failure to do so.
[51] Godwin has exercised full control over these properties. He has rented the Etobicoke property and received the proceeds. He has refinanced the mortgage on the property. He sold the Eglinton property and received the net proceeds. He has resided with Joanna and his children in the Woodbridge property. He has financed and refinanced the mortgage on the property.
[52] Godwin led no evidence of anyone else now claiming an interest in ownership of the Etobicoke or Woodbridge properties – both of which are very valuable. They are his assets to do with as he pleases. The court finds that Godwin is the sole owner of the Etobicoke and Woodbridge properties.
3.1.3 Further evidence
[53] Godwin deposed in his December 7, 2019 affidavit that to catch up with his support arrears and debts he had to sell all four of his Rolex watches for a total of $90,000.
[54] Godwin also stated in that affidavit that he had a Mercedes-Benz registered in Joanna’s name, but the dealership kept the car in 2018 because he couldn’t afford to pay for repairs. He also deposed that he now only drives an old Porsche car. He claimed in that affidavit that he was in dire financial straits and had to list his television and audio systems on Kijijji for $75,000.
[55] In fact, Godwin was never in dire financial straits. He testified, “I don’t deny that I live a good life and my family is wealthy”.
[56] Godwin and Joanna both said that they have remained in Nigeria as his family is fighting over his mother’s estate. It was apparent that this is a very large estate. Godwin said that he has already received two properties from the estate which he sold to pay his support arrears.
[57] Godwin has not filed a tax return since 2018. His 2018 notice of assessment shows net rental income of $15,298 as his only source of income. Joanna said that she has not filed a tax return since 2019.
3.2 Legal considerations for imputing income
[58] Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.
[59] The jurisprudence for imputation of income sets out the following:
a) Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, [2002] O.J. No. 3731(Ont. C.A.).
b) The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:
(i) Is the party intentionally under-employed or unemployed?
(ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?
(iii) If not, what income is appropriately imputed
c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
d) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
e) Absence of a reasonable job search will also usually leave the court with no choice but to find that the payor is intentionally under-employed or unemployed. See: Filippetto v. Timpano, [2008] O.J. No. 417, (Ont. S.C.); T.L. v. D.S., 2019 ONCJ 809.
f) As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, [2000] O.J. No. 453, (Ont. Fam. Ct.).
g) Where a party chooses to pursue self-employment, the court will examine whether this is a reasonable choice in the circumstances. See: Smith v. Smith, 2012 ONSC 1116.
h) The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.
i) The court will usually draw an adverse inference against a party for his or her failure to comply with their disclosure obligations as provided for in section 21 of the guidelines and impute income. See: Smith v. Pellegrini, [2008] O.J. No. 3616, (Ont. S.C.); Maimone v. Maimone, [2009] O.J. No. 2140, (Ont. S.C.). The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. Charron v. Carriere, 2016 ONSC 4719.
j) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken; Jonas v. Jonas; Price v. Reid, 2013 ONCJ 373.
3.3 Imputing gifts as income
[60] Where a party receives regular gifts from his or her parent, the court may impute the amount of those gifts as income for support purposes. See: Bak v. Dobell, 2007 ONCA 304; Korman v. Korman, 2015 ONCA 578; Marello v. Marello, 2016 ONSC 835.
[61] In Bak v. Dobell, the court set out the following principles in determining whether gifts should be included in a person’s income for support purposes:
- Line 150 is the presumptive income.
- Subsection 19 (1) of the guidelines is not exhaustive.
- In exercising discretion, a court will bear in mind the objectives of the guidelines to establish fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution.
- Lifestyle is clearly not a type of income, receipt or benefit included in total income. Canadians are not taxed on lifestyle, but lifestyle can be evidence to ask the court to draw a reasonable inference that the payor has greater income than that disclosed. Given the absence of an explanation, the court can impute income.
- Gifts are not income where they are for non-recurring expenses or where there is no control over how the gifts are used.
- Courts should consider the regularity, duration of their receipt and whether the gifts were part of the family’s income during cohabitation that entrenched a certain lifestyle in determining whether to impute them as income.
[62] Courts should be careful not to impute income from gifts, when so doing would have the effect of transferring a support obligation. See: Whelan v. O’Connor and in Malkov v. Stovichek-Malkov, 2017 ONSC 6822, where the court found gifts to be income writing at par. 69:
In reviewing the tests in Bak v. Dobell I am struck by the analogy to section 19(1) (i) of the Guidelines. In my view, when gifts take on the appearance of a long term subsidy for the pre and post separation family, as if the spouse was a beneficiary of income or benefits from an unwritten trust, the advances bend towards income.
[63] In Horowitz v. Nightingale, 2015 ONSC 204, the court imputed $50,000 per year for gifts that had been received regularly for 8 years and had been used for family purposes. There was evidence that the gifts were likely to continue.
[64] The jurisprudence on this issue was reviewed by the court in F.B.M. v. B.F., 2019 ONSC 708, where the court found that the true purpose of the grandfather’s generous gifts to his son, the father, appeared to be to provide the father with an income to support a comfortable lifestyle for himself and his children. The gifts were imputed as income. The court wrote at paragraph 49:
Recently, this court has imputed income to the payor in circumstances where there was evidence establishing a settled pattern of monetary gifts from the payor’s parents that established a lifestyle in excess of a basic standard of living and the gifts continued post-separation in material amounts. The court found that imputing income on the basis of these gifts reflected a determination about the payor’s past revenues and likely financial futures. See Korman v. Korman, 2015 ONCA 578, at paras. 62-67. In Malkov v. Stovichek-Malkov, 2017 ONSC 6822, at paras. 69-73, Justice McGee found that when gifts to the husband (e.g., payments for housing, utility costs, realty taxes) take on the appearance of a long-term subsidy as if the spouse was a beneficiary of income or benefits from an unwritten trust, the advances bend towards income. In Kkabbazy v. Esfahani, 2012 ONSC 4591, at paras. 77-87, the court imputed income to the husband based on evidence that he typically received and expected to receive funds “as needed” to support his lifestyle from his family. In Teitler v. Dale, 2017 ONSC 248, at paras. 41-67, the court imputed income to the husband despite his assertion that the funds advanced from his parents were loans and not gifts. He had adduced no evidence that he had repaid any part of the alleged loans and his expenses were far in excess of his asserted income.
3.4 Shirlyn’s position
[65] It is Shirlyn’s position that Godwin has always earned considerable unreported cash income. She said that he has always lived a high lifestyle. She says that he drives fancy cars, flashes expensive jewelry and travels extensively all over the world. She did not believe that Godwin has been supporting himself through gifts from family and friends.
[66] Shirlyn asks the court to impute Godwin’s income at $129,702. She came to this figure by taking Godwin’s claimed annual expenses in his December 7, 2019 financial statement and grossing them up.
[67] Shirlyn believes that Godwin and Joanna are the main investors in a new hotel and restaurant in Nigeria called the Muse Hotel. She went on the Muse Hotel Instagram page and found a picture of Joanna working behind a desk.
[68] Joanna testified that she had applied for a job at the hotel and as a “white woman’ she wanted to show the value she could bring to the business, so she agreed to pose for pictures. She said that she did not get the job and had no control over how the Muse Hotel used the pictures. While her explanation is unlikely, this picture is not proof that Joanna and Godwin are investors in the hotel.
[69] The agent from the City of Toronto presented to Godwin an article she obtained off the internet from a website called “Kenga the Voice of the People”. The article was ostensibly about the opening of the Muse Hotel and indicated that it was built by Canadian investors Godwin and Joanna. Both Godwin and Joanna dismissed the article as being untrue and unreliable. They said that there are many false things said on the internet in Nigeria. They denied having any involvement with this hotel.
[70] It was easy to see why Shirlyn doesn’t believe Godwin, given his history of fraud, his probable misrepresentations of income to CRA, to mortgage lenders and to her, his lifestyle and his poor payment history, but the court cannot rely on this internet article to find that Godwin and Joanna are principal investors in the hotel. The writer of the article is unknown and was not produced for cross-examination and the contents of the article were denied. The evidence is not sufficiently reliable to make the finding sought by Shirlyn and the City of Toronto.
[71] However, whether or not Godwin is an investor in this hotel will not really matter in the assessment of Godwin’s income. He is clearly receiving substantial funds, whether through his own efforts or through regular family gifts, to support what he admits is a very comfortable lifestyle.
3.5 Imputing income to Godwin
[72] The court’s challenge is to determine how much income to impute to Godwin. He has made the task much more difficult because of his incomplete financial disclosure. He did not provide an updated financial statement. He provided absolutely no documentary evidence that would allow Shirlyn or the court to trace who provided him with money, when it was provided, how much was given to him and how and when it was disbursed.
[73] Godwin did not produce his credit or mortgage applications, a job search list or an accounting of federal benefits received. He did not produce any of his bank statements after October 30, 2020.
[74] Godwin stated that many of his dealings were in cash. This made it even more difficult to assess his income.
[75] It was Godwin’s responsibility to provide comprehensive documentary evidence to explain how he obtained funds and met his expenses. He failed to do this. An adverse inference is drawn against him as a result.
[76] Godwin claims that he did not work between about 2004 and 2019, although he tried unsuccessfully to set up a business in 2016. He claims to have earned only $8,500 Canadian annually in a part-time job since 2019.
[77] Godwin alluded at trial to medical reasons for not working more. However, he said that he had not made this an issue and did not want Shirlyn to receive his medical reports.
[78] The court does not accept any of Godwin’s evidence. He has been secretive and deceptive about his financial affairs. His explanations about how he maintains his lifestyle were not supported by any independent evidence. The court finds that he has been earning unreported income. To the extent that he has not worked, the court finds that he has been deliberately unemployed or underemployed with no valid excuse.
[79] The next question is how much income the court should impute to Godwin.
[80] The court considered doing a detailed analysis of Godwin and Joanna’s revenues and expenses on an annual basis to come up with a fair imputed annual income for Godwin. However, due to Godwin’s failure to provide meaningful disclosure, there are far too many gaps for the court to conduct such an analysis in an accurate manner.
[81] The court prefers the approach suggested by Shirlyn of taking the annual expenses of $89,100 that Godwin deposed he was spending in his December 7, 2019 financial statement and then grossing it up since he is supporting these expenses with non-taxable income.
[82] The court finds this to be a very reasonable (and conservative) approach for the following reasons:
a) Godwin has been able to maintain his annual expenses of $89,100 since December 7, 2019. He provided no evidence that he has incurred further debt. In fact, he has been able to eliminate his support arrears that were being enforced by the Family Responsibility Office.
b) Godwin claimed that he only has one bank account. It is a joint account with Joanna. The annual deposits into the bank account are consistent with a person generating sufficient revenue to maintain annual expenses of $89,100. These deposits have been as follows:
i) In 2017 for 5 months, $61,128.
ii) In 2018, $107,094.
iii) In 2019, $105,259.
iv) In 2020, for 10 months, $65,034.
c) There were no rent deposits or expense payments regarding the Etobicoke property recorded in these bank statements. This means that Godwin is likely receiving more annual revenue than is reflected in his bank statements.
d) Godwin claimed that his expenses have gone down since Joanna and the children moved to Nigeria. He provided no documentary evidence of this. A substantial amount of Godwin’s stated annual expenses are for housing costs and support obligations that have continued to be paid while he has been in Nigeria.
e) Godwin is probably spending closer to $100,000 to $110,000 each year. He did not include in his financial statement any expenses for the Etobicoke property, even though there are mortgage ($775 each month), tax and common element expenses. And, the mortgage on his Woodbridge property has gone up from $3,700 monthly to over $4,200 monthly. Godwin also did not include his travel expenses in his financial statement. He has traveled extensively.
f) Godwin’s explanation that his expenses were paid by his mother (and now by other family members) is recent. There was no mention of this in his affidavit material to terminate support in 2018 nor in several affidavits he filed for this case. He provided no documentary evidence or particulars about this support. This new explanation is highly suspect.
g) If in fact Godwin has been receiving gifts from family (or friends) to subsidize his annual expenses as he claims, they have been regular and substantial for many years and, as in Malkov v. Stovichek-Malkov, supra, a significant portion of these gifts have been applied to housing costs. There is no evidence that these gifts will not continue. Godwin led no evidence that these are loans or that there is any expectation of repayment. The gifts will be included in Godwin’s income for support purposes.
h) Godwin has considerable assets available to him to generate income to pay this level of support – the full extent of these assets will probably never be known.
3.6 Gross-up of non-taxable income
[83] Courts will usually gross up non-taxable income. This includes gifts. See: Bak v. Dobell, supra; Horowitz v. Nightingale, supra. The goal is to achieve consistency between payors who pay less income taxes and have more funds available with which to pay support. See: Sarafinchin v. Sarafinchin, 189 D.L.R. (4th) 741 (Ont. S.C.J.).
[84] Godwin has not filed an income tax return since 2018. There is no indication that he will do so – he has a long history of being deceptive and hiding income. The court will treat the entire $89,100 as non-taxable income.
[85] The court has no difficulty in exercising its discretion to fully gross up the $89,100 as requested by Shirlyn. This revenue has allowed Godwin to maintain two valuable properties, that according to him, have gone up in value from about $545,000 to about 2.5 million dollars. Despite this, he has never increased his child support payments from the very low amount of $350 each month. Instead, he has made Shirlyn chase after support through the Family Responsibility Office.
[86] A software analysis for 2022 shows that the gross-up of $89,100 takes Godwin’s annual income to $122,593. This is the income that will be imputed to him. The guidelines table amount for one child at this income is $1,088 each month.
Part Four - Start date for support
[87] In closing submissions, Shirlyn asked that the increased support order start on April 1, 2019. This was a very reasonable request.
[88] Any support claimed after an application is issued is prospective support, not retroactive support and should presumptively be ordered. See: Mackinnon v. Mackinnon.
[89] 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. 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.
[90] The court finds that the threshold material change in circumstances has been met. The court has assessed Godwin’s annual income at $122,593, contrasted with his annual income of $32,000 in 2008.
[91] Shirlyn did not seek increased child support from Godwin until she issued her motion to change on September 24, 2019. That is the presumptive start date for support.
[92] The court must next determine whether it should deviate from the presumptive start date.
[93] Shirlyn did not unduly delay in seeking increased child support after the previous motion to change was resolved on March 26, 2019. It was also understandable why she was reluctant to seek increased support earlier. Godwin was extremely resistant to increasing child support at trial. He was demeaning to Shirlyn, questioning her motives in seeking money from him. Shirlyn knew this would be a painstaking process with Godwin.
[94] Godwin has engaged in blameworthy conduct by paying far less child support than Shirlyn was entitled to. He has also failed to provide Shirlyn with timely and meaningful financial disclosure about his finances so that she could properly assess if the child support he was paying should be increased.
[95] Sade’s circumstances have been disadvantaged by Godwin’s failure to pay appropriate child support. Shirlyn and Sade are on public assistance and lead a constrained lifestyle. Shirlyn has had to hold off on obtaining braces and a tutor for Sade because she does not have enough money to pay for these expenses. She put Godwin on notice that she was seeking his contribution to these expenses on September 24, 2019. Godwin has chosen not to assist her.
[96] The small retroactive order sought by Shirlyn will not cause Godwin hardship. He has significant equity in his two Canadian properties. The failure to order retroactive support would cause hardship to Shirlyn and Sade.
[97] The court finds that the fairest date to start support is April 1, 2019.
Part Five – Section 7 expenses
[98] 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.
[99] Shirlyn admitted that she has not incurred any section 7 expenses for Sade.
[100] Shirlyn said that she would like to obtain a math tutor for Sade. She said that this will cost $78 per session. The court accepts Shirlyn’s evidence that Sade is struggling with math in school and finds that this is a reasonable and necessary expense. The court finds that this is an extraordinary educational expense, based on Shirlyn’s income and the table amount of support Godwin must pay. The court will fix the annual expense for the tutor at $3,000.
[101] Shirlyn said that Sade also needs braces. She said that she has received a verbal quote of $4,000 for this expense. She has set up an appointment for Sade to meet with the orthodontist shortly. The court finds that this expense is reasonable and necessary and that it is an eligible section 7 expense.
[102] Shirlyn will be required to provide Godwin with receipts for the tutoring and orthodontist expenses within 30 days of receiving them.
[103] The court finds that there is no basis to deviate from the guiding principle that section 7 expenses should be shared by the parties in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. Shirly receives $19,374 annually for social assistance. In this case, no contribution from the child will be ordered.
[104] A software analysis shows that Godwin’s monthly contribution to the net section 7 expenses for orthodontics and tutoring should be $504 each month. Once Godwin’s share of the orthodontic expense is paid in full, Godwin’s monthly contribution to section 7 expenses will be reduced to $216 each month.
Part Six – Support credits and payment of arrears
[105] Godwin claimed that he has paid thousands and thousands of dollars of extra support to Sade. He provided no documentary evidence of any payments made since April 1, 2019. Shirlyn said that Godwin has made only sporadic direct payments for Sade over the years. The court found Shirlyn to be much more credible than Godwin and accepts her evidence. It is also revealing that Sade has gone without having orthodontic work for three years because Godwin would not contribute to the expense.
[106] Godwin is involved with two separate enforcement cases with the Family Responsibility Office. He should be aware that his obligation is to pay his support for Sade to Shirlyn. Even if he has made some payments directly for Sade’s benefit, he will not receive support credit for them.
[107] The court will order Godwin to pay the support arrears created by this order within 45 days. He has substantial equity in his Canadian properties and access to other funds. This will give him sufficient time to make the necessary financing arrangements to pay the arrears.
Part Seven – Conclusion
[108] An order shall go changing the support provisions of the existing order as follows:
a) Starting on April 1, 2019, Godwin shall pay child support to Shirlyn in the amount of $1,088 each month. This is the guidelines table amount for one child, based on an imputed annual income to Godwin of $122,593.
b) Starting on June 1, 2022, Godwin shall pay to Shirlyn additional support of $504 each month as his contribution to Sade’s section 7 expenses. Once Godwin’s contribution to Sade’s orthodontic expenses are complete, his contribution to section 7 expenses will be reduced to $216 each month.
c) Shirlyn shall send Godwin, within 30 days of receiving them, copies of the tutoring and orthodontic receipts for Sade.
d) Shirlyn shall immediately notify the Family Responsibility Office once Godwin has completed his contribution to the orthodontic expenses for Sade.
e) A support deduction order shall issue.
f) The Family Responsibility Office is requested to adjust its records in accordance with this order.
g) Godwin shall provide Shirlyn with complete copies of his income tax returns and notices of assessment by June 30th each year, together with documentary evidence of his annual income from all sources in Nigeria.
[109] Godwin shall pay Shirlyn the arrears created by this order and the balance of arrears still owed to the City of Toronto in the sum of $4,023.63 within 45 days.
[110] The court finds that Shirlyn was the successful party in this case. If she seeks her costs, she shall serve and file written submissions by May 16, 2022. Godwin and Joanna will then have until June 6, 2022 to serve and file their written response (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any bill of costs or offer to settle. They are to be either delivered or emailed to the trial coordinator’s office.
[111] The court commends counsel, the agent for the City of Toronto and the parties for their civility throughout the trial.
Released: May 2, 2022
Justice S.B. Sherr