Court File and Parties
Date: January 3, 2023 Court File No.: D44575/08 Ontario Court of Justice
B E T W E E N:
DOLLEN KERR, APPLICANT ZONELLE WEBB, for the APPLICANT
- and -
DARI MOUSSA, RESPONDENT ROMA S. MUNGOL, for the RESPONDENT
HEARD: DECEMBER 14, 2022
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
[1] This trial was about the respondent’s (the father’s) motion to change the child support terms contained in the order of Justice Carole Curtis, dated November 19, 2008 (the existing order).
[2] The existing order was made after an uncontested hearing. The father’s annual income was imputed by Justice Curtis at $30,000. He was ordered to pay child support of $444 each month for the parties’ two children, starting on December 1, 2005.
[3] The father, in his draft order filed at the outset of the trial, asked the court to fix his child support arrears at $3,240, to be repaid at $50 each month. He asked that ongoing support be paid at $135 each month, starting on January 1, 2023, based on his 2021 annual income of $14,028.
[4] The applicant (the mother) asked the court to dismiss the father’s motion to change. She proposed that the father pay his outstanding child support arrears at $200 each month.
[5] The parties filed affidavits and financial statements as their direct evidence. They each provided supplementary oral evidence and cross-examined each other.
[6] The issues for the court to determine are:
a) Has there been a material change in circumstances regarding the father’s income since the existing order was made?
b) If so, when is the presumptive start date that child support should be changed?
c) Should the court deviate from the presumptive start date when child support should be changed?
d) At what level should the court assess the father’s income in any year it determines that child support should be changed?
e) How should any support arrears owing be paid?
Part Two – Brief background facts
[7] The father is 54 years old and is single. He was previously married.
[8] The mother is 49 years old. She works part-time out of her home. She is married and has had three other children with her husband.
[9] The parties did not cohabit. They had a relationship from 2002 to 2007.
[10] The parties had two children together. K.S. is now 19 years old and K.K. is 17 years old (the children).
[11] The children have always lived with the mother.
[12] The father has had minimal contact with the children.
[13] K.S. attends Centennial College in Toronto. K.K. is in his final year of high school.
[14] The mother issued an application in this court for custody and child support on May 7, 2008.
[15] The father initially participated in the case. However, he did not file an Answer/Claim or any financial disclosure. He left Canada for France during the court proceeding. He did not attend at the court hearing. The existing order was made on an uncontested basis.
[16] The father deposed that he returned to Canada in December 2008.
[17] The father did not appeal the existing order. He did not move to set it aside.
[18] On November 10, 2010, the Director of the Family Responsibility Office (the Director), on behalf of the mother, issued a Notice of Default Hearing against the father.
[19] On May 28, 2011, the father brought a motion to change the existing order. He sought to pay ongoing child support based on an annual income of $12,954. He asked for a substantial reduction of child support arrears that had accumulated.
[20] In 2012, the father left Canada and went to Chad.
[21] On May 7, 2013, the father did not attend at court and Justice Curtis dismissed his motion to change. The father was still in Chad.
[22] On May 7, 2013, Justice Curtis also conducted the default hearing on an uncontested basis. She fixed support arrears in the amount of $20,007.37 as of April 29, 2013. She ordered the father to pay the full amount of the arrears, failing which he was to be committed to jail for 90 days, or until they were earlier paid. She also ordered the father to pay the ongoing child support payments of $444 each month, failing which he would be committed to jail for five days for each payment in default, or until the payments were earlier paid (the default order).
[23] The father made none of these payments.
[24] The father did not appeal or move to set aside either of these orders.
[25] The father returned to Canada from Chad on July 7, 2017. He was arrested on his arrival pursuant to a warrant of committal arising from the default order.
[26] The father was released from prison on October 7, 2017.
[27] The father deposed that he had a slip and fall accident while in prison and injured his back.
[28] The father testified that he has not worked since he was released from prison. He was initially in receipt of social assistance. Since September 24, 2021, he has been in receipt of Ontario Disability Support Program payments (ODSP).
[29] The father’s child support arrears, as of November 1, 2022, are $64,806.88.
Part Three – The father’s position and evidence
[30] The father deposed that he has never earned the $30,000 annual income imputed to him in the existing order.
[31] The father was born and raised in Chad. The father said that he came to Canada in 1997 as a refugee and worked as a construction worker from 1999 to 2008, earning minimum wage income. He said that he also attended English language classes. He became a Canadian citizen in 2004.
[32] The father said that he was laid off in 2008 and received Employment Insurance (EI) benefits. He said that he went back to school to attend English language lessons and improve his work skills. He provided no evidence of this.
[33] The father left Canada and went to France in 2008 and did not attend at court. He said that he left on an emergency basis as his son (from his relationship with his ex-wife) became seriously ill. He provided no corroborative evidence of this.
[34] The father did not advise the court that he was leaving Canada. The court made the existing order on an uncontested basis. When asked why he did not let anyone know he was leaving, the father said, “it didn’t enter my mind”.
[35] The father returned from France in December 2008. He said that he did not learn of the existing order until May 2009. He conceded that he made no effort to find out what had happened at court in 2008.
[36] The father said that he was unable to find employment from 2008 to 2012 and that he was in receipt of social assistance the entire time. He did not use this time to upgrade his education or his work skills. He provided no evidence of job searches.
[37] The father claimed that he paid the mother cash of $250 to $300 each month during this time. This was overstated. In his first motion to change, the parties agreed that the father had paid the mother a total of $3,650 during 2009 and 2010. [1] These payments were set out in records provided in that motion to change by the father.
[38] The father was credited for these payments in the Director’s records. [2]
[39] The father said that he left Canada and went to Chad in 2012 because his family members were involved in a serious motor vehicle accident. He deposed that his brother died, another brother had his leg amputated and his father suffered a serious head injury. The father provided no corroborative evidence of this.
[40] The father did not advise the mother that he had gone back to Chad, nor did he advise the court.
[41] The father did not attend court at the hearing of his motion to change or at his default hearing. Orders were made in his absence.
[42] The father claimed that he tried to return to Canada in 2013. He said that he could not travel because his passport had been suspended due to his support arrears.
[43] The father said that he was advised to obtain a one-time travel document to come to Canada. He said that he tried to get this document from the Canadian embassy in Sudan without success. He said that it took him four years to obtain this document to travel back to Canada.
[44] The only corroborative evidence the father provided to support his version of events was a July 23, 2014 letter, sent to him from Citizenship and Immigration Canada, informing him that he would be denied passport services, due to his persistent support arrears, until the Department of Justice informed it otherwise. He provided no evidence supporting his testimony that for four years he could not obtain a one-time only travel document to come to Canada.
[45] The father said that he did not work in Chad from 2012 to 2017 because of the civil unrest in the country. He said that there was no work available in Chad. He said that he spent his days looking after his parents. He said that his cousin in Ontario sent money to him on occasion to pay his expenses. Again, the father provided no corroborative evidence of any of this.
[46] The father said that he tried to contact the mother twice while in Chad without success.
[47] The father said that he has been unable to work since 2017 due to the back injuries he suffered from his slip and fall accident while in prison. He testified that he is in constant pain. He said that he cannot focus and has trouble sleeping. He said that he cannot sit or stand for long. He showed the court his pain medication.
[48] The father filed two medical reports from his family doctor. The family doctor stated that the father presented in 2017 with symptoms and signs of disc prolapse. The father was assessed by a neurosurgeon and the father declined surgery. The family doctor reported that the father tried physiotherapy with little benefit and continues to be on pain medication. The family doctor also stated that the father is hypertensive and on pain medication with reasonable control.
[49] The family doctor wrote that the back injury may progress if the father is involved in any jobs that entail lifting and quick movements. He said that the father cannot stand or sit for more than one hour. It was unclear if that was based on self-reporting by the father.
[50] The family doctor said that the father’s prognosis is poor because he is “adamantly refusing surgery”.
[51] The father said that he is very scared that if he has surgery he will be paralyzed. When asked why he would not have surgery to relieve his pain when he has been told that there is only a small chance of this happening, the father responded that the doctors cannot know that.
[52] The father has not returned to school to retrain since 2017. When asked why, he said that he could not sit for long in a classroom. When asked if he had sought out accommodations for his back pain from a prospective school, the father said that he had not.
[53] The father has not looked for work since he was released from jail in 2017.
[54] The father has no concrete plans to earn income in the future. He said that he hopes that his back will get better one day.
[55] The father deposed that he filed for bankruptcy in 2018.
[56] The father put forward the position that his arrears as of May 7, 2013, being $20,007.37, should be extinguished because he had served the full jail sentence that had been imposed at the default hearing.
[57] This argument has no merit. The Default Hearing was an enforcement proceeding under the Family Responsibility and Support Arrears Enforcement Act. A committal term ordered in a default proceeding does not extinguish arrears – it only enforces payment of them. The legal mechanism for the father to reduce the arrears is to bring a motion to change, as he has done here – not to sit out a jail term for failing to pay child support.
[58] Subsection 41 (17) of the Family Responsibility and Support Arrears Enforcement Act makes this very clear. It reads as follows:
Imprisonment does not discharge arrears
(17) Imprisonment of a payor under clause (10) (h) or (i) does not discharge arrears under an order.
[59] The father initially asked the court to change the existing order in accordance with his actual income earned since 2005. He modified that position during the trial and agreed that the existing order should not be changed for the period prior to when his motion to change was dismissed on May 7, 2013. This is because the issue of reducing the support arrears that had accumulated as of May 7, 2013, had already been determined by Justice Curtis. She dismissed that request. The father did not appeal that order or move to set it aside. This court should not go behind that order.
[60] The father deposed that he earned no income from 2013 to 2016. He deposed that his income since 2017 has been as follows:
2017 - $3,180 2018 - $9,549 2019 - $9,306 2020 - $10,540 2021 - $14,028
[61] The father has been receiving ODSP at a projected annual rate of $14,736 in 2022. The Child Support Guidelines (guidelines) table amount for two children at this income is $138 each month. The father proposed paying this amount starting on January 1, 2023.
[62] In his draft order, the father also asked that his support arrears be fixed at $3,240 and that he be permitted to pay these arrears at the rate of $50 each month.
Part Four – The mother’s evidence and position
[63] The mother asked that the father’s motion to change be dismissed.
[64] The mother deposed that the father has never come close to meeting his financial obligations to the children. She said that he paid her sporadic support until she brought the matter to court in 2008.
[65] The mother acknowledged that the father paid her about $3,650 during 2009 and 2010 – well below the amount ordered by the court.
[66] The mother said that the father has not voluntarily paid her any support since 2010. The Director’s records (with the exception of one $600 payment made by the father in 2011), supported that statement. The father did not deny this. [3]
[67] The mother claimed that the father has operated a business in Chad. She provided no evidence to support this statement. The father denied operating a business. He said that some food was grown in his backyard and sold for nominal income while he lived there. It remained unclear how he supported himself while in Chad. He said that his cousin in Canada only sent him $80 on occasion.
[68] The mother was incredulous that it would take the father four years to obtain the necessary paperwork to return from Chad. Her position was that the father has left Canada twice during court proceedings to avoid his child support obligations.
[69] The mother said that she was unaware that the father had returned to Canada and had been in prison, until after his release in 2017, when he appeared at her door to ask her to make a deal with him on the arrears.
[70] The mother believes that the father has always been able to work and earn income at the level imputed to him by Justice Curtis in the existing order.
[71] The mother deposed that the father asked her in 2021 to make a deal with him about the arrears. He told her that he had sought a lawyer to sue the prison for his injuries from his slip and fall. She said no. She believes that the father never pursued that lawsuit because he believed that anything he received would go to her.
[72] The mother expressed disappointment that the father has not shown any interest in having a relationship with the children or in financially supporting them. She strongly feels that the court should not reward him for his lack of responsibility.
Part Five – The start date for any support adjustment
5.1 Legal considerations
[73] The father’s motion to change support is governed by subsection 37 (2.1) of the Family Law Act which reads as follows:
Powers of court: child support
(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33.
[74] The powers of the court on a motion to vary a child support order are very broad. The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis. The court's authority with respect to arrears is similarly broad and includes the power to rescind the arrears and interest, either entirely or in part, or to reduce the amount of arrears payable. See: Meyer v. Content, 2014 ONSC 6001.
[75] The Supreme Court of Canada set out the framework for deciding applications to decrease support retroactively at paragraph 113 in Colucci v. Colucci, 2021 SCC 24 as follows:
(1) The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.
(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.
(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.
(4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.
(5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.
[76] Given the informational asymmetry between the parties, a payor’s success in obtaining a retroactive decrease will depend largely on the payor’s financial disclosure and communication. Indeed, effective notice in this context is only “effective” when there has been disclosure of the changed financial circumstances. At the stage of considering the D.B.S. factors, disclosure will once again be a key consideration in assessing whether the payor’s conduct operates to shorten or lengthen the presumptive period of retroactivity. See: Colucci, par. 7. [4]
[77] In Colucci, the court discussed what constitutes effective notice when a payor seeks a retroactive decrease in income, writing the following at paragraphs 87 and 88:
[87] It is not enough for the payor to merely broach the subject of a reduction of support with the recipient. A payor seeking a retroactive decrease has the informational advantage. The presumptive date of retroactivity must encourage payors to communicate with recipients on an ongoing basis and move with reasonable dispatch to formalize a decrease through a court order or change to a pre-existing agreement. The timing and extent of disclosure will be a critical consideration in ascertaining whether and when effective notice has been given and determining whether to depart from the presumptive date of retroactivity.
[88] In decrease cases, therefore, courts have recognized that effective notice must be accompanied by “reasonable proof” that is sufficient to allow the recipient to “independently assess the situation in a meaningful way and respond appropriately” (Gray, at para. 62, citing Corcios, at para. 55; Templeton, at para. 51). This ensures that effective notice provides a realistic starting point for negotiations and allows the recipient to adjust expectations, make necessary changes to lifestyle and expenditures, and make informed decisions (Hrynkow v. Gosse, 2017 ABQB 675, at para. 13; Hodges v. Hodges, 2018 ABCA 197, at para. 10).
[78] A brief email will not put a support recipient sufficiently on notice of a need to reduce child support. Rather, specifics of the alleged change must be set out, along with sufficient evidence to support the legitimacy of the change. Additionally, payors need to be diligent in commencing a proceeding if the recipient will not agree to reduce the support obligation. See: Jonas v. Akwiwu, 2021 ONCA 641.
[79] 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. See: Michel v. Graydon, 2020 SCC 24, par. 123.
[80] 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 may be addressed by the form of payment. See: Michel, par. 124.
[81] 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. See: Michel, par. 125.
[82] If children have gone without the appropriate level of support, it often means that the recipient parent has been forced to go into debt themselves or spend all their monies, not on property, but on the child. See: Michel, par. 126.
5.2 Has there been a material change in circumstances in the father’s income?
[83] The father states that there has been a material change in circumstances because he has not been earning, nor has he been capable of earning, the annual income of $30,000 that was imputed to him in the existing order.
[84] The threshold for a person to establish a material change in circumstances in their income is fairly low. See: Retroactive Support after Colucci, by Professor Rollie Thompson, 40 CFLQ 61.
[85] Paragraph 1 of section 14 of the Child Support Guidelines (the guidelines) reads as follows:
Circumstances for variation
For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:
In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.
[86] The court finds that the father has met this low threshold. The court accepts that the father suffered a personal injury in 2017 that has adversely affected his ability to earn the income imputed to him in the existing order.
5.3 When is the presumptive start date for support to be changed?
[87] Colucci sets out that the presumptive start date to change support should be the date of effective notice, but that date should not be more than three years before the date of formal notice.
[88] The mother told the court that the father asked her towards the end of 2017 to cancel his child support arrears. He told her that he could not afford them. He also made a similar request to her just prior to his starting his motion to change in 2021. Both times she told the father no.
[89] The father agreed with this evidence.
[90] At first glance, it appears that effective notice was given to the mother in late 2017, when the father first sought the support reduction from her. However, since this is more than three years back from the date of formal notice (June 10, 2021), the presumptive start date would be June 10, 2018 – if the court finds that the father’s request to reduce support in late 2017 constituted effective notice.
[91] Colucci sets out that effective notice must be accompanied by “reasonable proof” that is sufficient to allow the recipient to “independently assess the situation in a meaningful way and respond appropriately”. The father did not provide any such proof to the mother. He provided no disclosure about his financial or medical circumstances to the mother.
[92] Accordingly, the court finds that the father did not provide effective notice of his claim to reduce support until he issued his motion to change.
[93] The father also took no steps to follow through with his initial request in late 2017 to reduce arrears. He made no effort to pursue negotiations with the mother. He provided no disclosure to her. He just disappeared from her life for almost four years.
[94] The father waited until just before he issued his motion to change to broach the topic again with the mother and asked her to make a deal with him to reduce the arrears. The court accepts the mother’s evidence that the father intimated to her that if she made such a deal, she could get a portion of any damages he could obtain from the prison in a lawsuit.
[95] The court finds that the presumptive start date to change support is June 10, 2021.
5.4 Should the court deviate from the presumptive start date to change support?
[96] The court must next determine whether it should deviate from the presumptive start date to change support.
[97] The father did not provide an understandable reason for his delay in bringing his motion to change. He claimed that he struggled to obtain the necessary paperwork to start his motion to change. This was a poor excuse. The father was out of the country after 2012 and was not earning any income or filing tax returns. He could have made a simple request to the court, starting in 2017, to dispense with filing these documents.
[98] The father is not new to the court process. He was involved in two prior support proceedings with the mother. During those proceedings, he had obtained the assistance of duty counsel. He was aware that he could obtain assistance with starting any new motion to change.
[99] The father made no effort to follow through on his initial request to the mother to reduce arrears. He did not provide the mother with financial or medical evidence for her to assess his request to reduce support. He did not make any further effort to negotiate settlement until just before he issued his motion to change on June 10, 2021.
[100] The father has engaged in serious blameworthy conduct. He has not voluntarily paid any child support since 2011 – a period of 11 years. It is unfathomable that he did not make the effort to pay anything for the children during this time.
[101] Even taking the father’s evidence at its highest, he has not voluntarily paid any child support while on ODSP, despite having a support obligation at that income level.
[102] The father has shown no interest in taking steps to improve his ability to earn income. He has not looked for work. He has not retrained or gone back to school. He has not followed medical recommendations to obtain surgery to repair his back pain.
[103] The father also acted in a blameworthy manner by failing to provide the mother with annual financial disclosure.
[104] The father’s abysmal attitude towards his child support obligations adversely affected his credibility. In the absence of compelling corroborative evidence, the court does not accept his explanations for leaving Canada during both prior court proceedings. It does not accept that he was unable to earn the income level imputed to him in the existing order up until 2017. The court agrees with the mother that the father was avoiding his child support obligations.
[105] The father conceded that the circumstances of the children have been disadvantaged by his failure to pay support. The mother and her husband have assumed the entire financial responsibility for the children. K.S. requires student loans and works part-time to afford his post-secondary education. The mother described how it has been a struggle to make ends meet.
[106] The court recognizes that the accumulated arrears are a hardship for the father. It will address that hardship by ordering monthly payments that he can afford.
[107] The court will not deviate from the presumptive start date of June 10, 2021 to change support. It finds that this result is not unfair in these circumstances.
[108] The court also wishes to emphasize that even if it had found that the presumptive start date of support was June 10, 2018 (3 years before the date of formal notice), it would have deviated from that date and have chosen June 10, 2021 as the start date to change support, due to the factors of delay, blameworthy conduct and the disadvantaged circumstances of the children that have been discussed above.
Part Six – Change to the existing order
6.1 Legal considerations for imputing income
[109] Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.
[110] 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 ONCA 41868.
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.
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. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
e) 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 ONSC 22560.
f) The receipt of ODSP or Workplace Safety and Insurance Board benefits is not sufficient proof of one’s inability to work for support purposes. See: Tyrrell v. Tyrrell, 2017 ONSC 6499. The court cannot take judicial notice of any eligibility requirements for ODSP. Nor can it delegate the important and complex determinations of employability and income earning capacity to unknown bureaucrats applying unknown evidence to unknown criteria. See: Abumatar v. Hamda, 2021 ONSC 2165.
g) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.
h) The payor must prove that any medical excuse for being underemployed is reasonable. See Rilli v. Rilli, 2006 ONSC 34451. Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his/her reasonable health needs justify his/her decision not to work. See: Cook v. Burton, 2005 ONSC 1063 and Stoangi v. Petersen, 2006 ONSC 24124.
i) Support payors must use reasonable efforts to address whatever medical limitations they may have to earn income. This means following up on medical recommendations to address these limitations. See: Cole v. Freiwald, 2011 ONSC 4409, per Justice Marvin A. Zuker, paragraphs 140 and 141.
j) Even if the court accepts that the party has health-related challenges that may impact their income earning capacity, it must consider the nature and extent of the impact and whether the party could work on a part-time basis or in a less demanding position. See: Bentley v. Bentley, 2009 ONSC 562; Kinsella v. Mills, 2020 ONSC 4785.
k) 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, 2006 ONCA 26573.
l) In the current economy, courts should not default to making assumptions that people can earn a minimum wage income at full-time hours. The reality is that there are now far more part-time workers that come before the court. See: T.M.B. v. B.P.G., 2018 ONCJ 435.
6.2 Analysis
[111] The court finds that the father has been deliberately unemployed or underemployed since June 10, 2021, for the following reasons:
a) He has made no effort to look for work.
b) He has made no effort to retrain or go back to school to upgrade his education.
c) He has not followed medical advice to obtain surgery to relieve his back pain.
[112] The court finds that the father provided a partial medical excuse for his unemployment. The court accepts that his back pain from his slip and fall has adversely affected his ability to do physical work that requires lifting and quick movements.
[113] However, the evidence does not convince the court that the father was incapable of working at any job since the presumptive start date, if he had taken steps since 2017 to retrain or to upgrade his education. He has chosen not to do this. The father has not even explored whether he can attend school with his back pain being accommodated.
[114] It is interesting to note that during his first motion to change support, the father advised the court that he was starting school for literacy and computer training. [5] The father could have gone back to school for that purpose after 2017 and be working today.
[115] This leaves the question of what income to impute to the father from the presumptive date to change support.
[116] The court recognizes that the father has been out of the workforce for a long time and that he has back issues. He is 54 years old. He has a grade 12 education and English is his second language. These factors limit his income earning ability.
[117] The court finds that the father should have (at the very least), been working part-time since the presumptive start date, at a minimum wage income. It will impute an annual income to him of $18,000, starting on June 10, 2021, and change the existing order accordingly.
[118] The guidelines table amount for two children at an annual income of $18,000 is $263 each month.
[119] K.S. is over the age of 18. The court must consider whether the guidelines approach is inappropriate for him, pursuant to clause 3 (2) (b) of the guidelines. K.S. is living at home while attending post-secondary school. The guidelines approach is not inappropriate for him.
Part Seven – Rescission of arrears
[120] The father also asked the court to rescind all but $3,240 of arrears because he will never be able to pay them. The mother opposed this request.
[121] This is a separate analysis from determining if there should be a downward variation of arrears.
[122] In Colucci, the court set out the following:
In this category of cases, the prior child support order or agreement corresponds with the payor’s income. The arrears accurately reflect the amount of support that the payor should have paid under the Guidelines, after all considerations, including any claim of hardship under s. 10, have been determined. In other words, the arrears represent sums that could have been paid at the time payments came due, but were not. The payor parent’s claim for rescission is thus a form of “hardship” application, in which there has been no past change in circumstances justifying a retroactive decrease in the support obligation. See: paragraph 134.
Under this category of cases, the payor’s ongoing financial capacity is the only relevant factor. The payor must therefore provide sufficient reliable evidence to enable the court to assess their current and prospective financial circumstances, including their employment prospects and any assets, pensions, inheritances or other potential sources of future capacity to pay. See: paragraph 135.
In this category of cases, the payor must overcome a presumption against rescinding any part of the arrears. The presumption will only be rebutted where the payor parent establishes on a balance of probabilities that — even with a flexible payment plan — they cannot and will not ever be able to pay the arrears. Present inability to pay does not, in itself, foreclose the prospect of future ability to pay, although it may justify a temporary suspension of arrears. This presumption ensures rescission is a last resort available only where suspension or other creative payment options are inadequate to address the prejudice to the payor. It also encourages payors to keep up with their support obligations rather than allowing arrears to accumulate in the hopes that the courts will grant relief if the amount becomes sufficiently large. Arrears are a “valid debt that must be paid, similar to any other financial obligation”, regardless of whether the quantum is significant. See: paragraph 138.
While the presumption in favour of enforcing arrears may be rebutted in “unusual circumstances”, the standard should remain a stringent one. Rescission of arrears based solely on current financial incapacity should not be ordered lightly. It is a last resort in exceptional cases, such as where the payor suffers a “catastrophic injury. See: paragraph 139.
[123] This is a stringent test for the father to meet. He did not meet it.
[124] The court will not rescind any of the arrears. The father has engaged in significant blameworthy conduct. He currently can pay something towards the arrears. He also can retrain to improve his financial circumstances and pay more towards the arrears in the future. There is always the possibility that the father will receive an inheritance or prize money from a lottery. The Director also can collect arrears from any federal diversions.
Part Eight – Payment of arrears
[125] This order will result in a modest reduction of support arrears of $3,620 ($444-263 = $181 per month x 20 months).
[126] The father proposes to pay the arrears at $50 each month. The mother seeks payment at $200 each month. The income imputed to the father is modest. He has a limited ability to pay support. The court will order that he may pay the arrears at the rate of $50 each month. However, if he is more than 30 days late in making any ongoing or arrears support payments accrued after February 1, 2023, the entire amount of arrears then owing shall immediately become due and payable.
Part Nine – Conclusion
[127] A final order shall go on the following terms:
a) The existing order shall be changed to provide that, starting on June 1, 2021, the father shall pay child support to the mother of $263 each month. This is the guidelines table amount for two children based on an imputed annual income to him of $18,000.
b) The father may pay the outstanding support arrears at $50 each month, starting on February 1, 2023. However, if he is more than 30 days late in making any ongoing or arrears support payments accrued after February 1, 2023, the entire amount of arrears then owing shall immediately become due and payable.
c) Nothing in this order precludes the Director of the Family Responsibility Office from collecting support arrears from any government source (such as HST or income tax refunds) or from any lottery or prize winnings.
d) A support deduction order shall issue.
e) The Director or administrator of Ontario Works, the Ontario Disability Support Program or any income support program, shall deduct from any income support paid or payable to the respondent father, the maximum prescribed amount, currently 10%, on account of the respondent father’s child support obligation for the children, to be paid to the Director, Family Responsibility Office for the benefit of the mother.
f) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year.
g) The father shall immediately notify the mother when he obtains any employment, provide her with the name and address of his employer and his first three pay cheques from the employer within 14 days of receipt.
[128] If either party seeks costs, they may serve and file written submissions by January 17, 2023. The other party will then have until January 31, 2023, to respond in writing (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any offer to settle or bill of costs.
[129] The court thanks counsel for their professional presentation of the case.
Released: January 3, 2023
Justice Stanley B. Sherr
Footnotes:
[1] This was set out in the November 7, 2011 endorsement of Justice Curtis.
[2] This is set out in the Director’s Statement of Arrears filed as Exhibit #2 at the trial.
[3] The Director has been able to collect small amounts of support from the father through federal diversions of monies payable to the father.
[4] D.B.S. refers to the case of D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 SCR 231.
[5] This is set out in the August 2, 2012 endorsement of Justice Curtis.
