Ontario Court of Justice

Date: 2023 02 14 Court File No.: Toronto DF0-19-15743-B3

Between:

Paulina Conkova Applicant

— AND —

Jacques Ngassam Respondent

Before: Justice D. Szandtner

Heard on: January 26, 2023 Reasons for Judgment released on: February 14, 2023

Counsel:

Paulina Conkova.............................................................................................. on her own behalf Jacques Ngassam………………………………………………………………on his own behalf

SZANDTNER J.:

Part One – Introduction

[1] This trial was about the child support arrangements for the parties’ 11 year old daughter (the child).

[2] The court must determine:

(a) The start date for child support. (b) The amount of support arrears owing by the father to the mother. (c) How support arrears created by this order should be paid.

[3] The applicant Ms. Conkova (the mother) was self-represented. She was assisted by two Czech interpreters. The respondent Ms. Ngassam (the father) was self-represented. He was assisted by two French interpreters. Both parents testified and were cross-examined. They did not call any additional witnesses.

Part Two – Background Facts

[4] The mother’s Application was issued on June 27, 2019 seeking orders for sole decision-making responsibility, parenting time and child support, including a contribution by the father for special and extraordinary expenses (section 7 expenses) pursuant to section 7 of the Child Support Guidelines (the guidelines).

[5] The father was served with the Application on August 6, 2019.

[6] On October 22, 2019, Justice P. Jones made a final order on consent of the parties granting sole decision-making responsibility to the mother and granting her the ability to travel and obtain government documents for the children without the father’s consent. The court also made a temporary order for the father’s parenting time to take place at a supervised access centre.

[7] On January 15, 2020, Justice M. Sirivar made a temporary without prejudice order requiring the father to pay the mother child support in the amount of $200.00 per month and to provide financial disclosure.

[8] On November 29, 2021, Justice M. Sirivar made the following final orders on consent of the parties:

(1) Commencing February 1, 2021, the father shall pay to the mother child support for the child in the monthly amount of $359.00 in accordance with the guidelines, based on the Respondent Father’s current annual salary of $40,077.88. (2) The child support owed by father to the mother for the period from February 1, 2021 to June 1, 2021 is $2703.00. (3) The father shall have video parenting time with the child once a week on Wednesdays from 6:00 pm to 7:00 pm. (4) The mother may travel outside of Canada with the child without the consent of the father, except to the Czech Republic, where she must obtain the written consent of the father.

Part Three – The Mother’s Position and Evidence

[9] The mother’s position is that the start date for child support should be the date of the child’s birth, September 12, 2012. She withdrew her claim for retroactive s.7 expenses.

[10] The mother stated that when the parties met, the father was the superintendent of the building in which the mother resided. The father resided with his wife and children. The mother resided with her common-law partner.

[11] The mother testified that her common-law partner was abusive and the father was a support to her. Their relationship progressed and became intimate. When the child was born in 2012 the mother and father were still both committed to their respective relationships. This did not change when the child was born. They never resided together or identified as a couple.

[12] The mother’s evidence is that the father was aware that he was the child’s father. The mother and the father both left the building in which they had met soon after the birth. The father did not pay any child support to the mother or have contact with the child on more than one occasion after her birth.

[13] The mother stated that her common-law partner was deported to the Czech Republic in 2014 when the child was two years of age.

[14] The mother stated that she raised the child as a single mother. She relied on social assistance and shelter support while her daughter was young. She qualified for the Ontario Disability Support Program (ODSP) in 2017 and is still in receipt of this disability benefit.

[15] The mother gave birth to a second child in 2016 by a different father. That child’s father does not pay child support.

[16] The mother stated that the father had one interaction with the child after her birth. The child was very young at the time.

[17] The mother testified that she never asked the father to be involved in terms of providing financial support or exercising parenting time with the child. She explained that she did not ask because she was aware of his wife and other children. She was also aware that he had a child who resided in Mexico.

[18] The mother testified that the first time she requested child support from the father was when she served him with the within Application on August 6, 2019.

Part Four – The Father’s Position and Evidence

[19] The father’s position is that the start date for child support should be the date of the service of the Application, August 6, 2019.

[20] The father testified that he was aware that the mother had given birth to his child when she was born. He described one interaction with the child when she was young. He watched her play in the park. He testified that the mother’s common law partner warned him to stay away from the child and he abided by this request. He also confirmed mother’s evidence that she never asked him for child support prior to the within Application nor sought to involve him in the child’s life in any way.

[21] The father gave evidence with respect to his financial situation in the years following the child’s birth. When she was born he already had three children with his wife. In 2013 he had a fourth child with his wife. They have remained married.

[22] The father stated that he has a sixth child with another woman who is now 20 years of age. She resides in Mexico. He has sent her sporadic financial support over the years.

[23] In 2013, the father attended Alpha College. He obtained a diploma and then attended Boreal College. As a result of the diplomas earned at these colleges, he was able to enrol in Glendon College for an undergraduate degree in Sociology. He attended Glendon as full-time student and completed his B.A. from 2017 – 2021. In 2021 he began a full-time teaching degree at the University of Ottawa (Toronto campus). He expects to graduate in the spring of 2023.

[24] The father has been a full-time student during this continuous period of study. He has supported his family through his part-time employment as an Uber driver and through student loans.

Part Five – When should child support start?

5.1 Legal considerations

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

1 ) In an application under section 22, the court may make an interim or final order,

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

[26] 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 the 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.

[27] This framework in Colluci 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.

[28] 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.

[29] The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 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.

5.2 Analysis

a) What is the presumptive start date for support?

[30] The first step is for the court to determine the date of effective notice. The court must consider any evidence that the mother sought child support from the father.

[31] The parties agree that the first time the mother sought child support from the father was when he was served with the within Application on August 6, 2019.

[32] As the mother did not broach the subject of child support with the father prior to commencing her Application in this court, the effective date of notice and the formal date of notice are the same; August 6, 2019. Accordingly, the presumptive date for the commencement of child support is August 6, 2019.

b) Should the court exercise its discretion to depart from the presumptive start date for child support?

[33] The court retains the discretion to depart from the presumptive date where the result would otherwise be unfair.

[34] The Supreme Court of Canada in Colucci set out the factors the court must consider when deciding whether to depart from the presumptive date of retroactivity as established by D.B.S. They are as follows:

1. Reason for the delay in bringing the claim;
2. Conduct of the payor parent;
3. Circumstances of the child; and,
4. Hardship that may be caused by a retroactive award.

Reason for the delay in bringing the claim

[35] The court finds that there is a seven year delay on the part of the mother in bringing an application for child support. She testified that she did not seek child support earlier because she was aware of the father’s other children and obligations. She was aware of his wife and three children and his child in Mexico at the time the child was born. She stated that she did not seek child support or make any attempts to develop a relationship between the child and the father through contact.

Conduct of the payor parent

[36] The father was aware that he was the parent of this child. However, the mother and child left the apartment building in which they met soon after her birth. He was not approached for any financial support by the mother until the within Application. He testified that he was warned to not be involved in the child’s life by the mother’s common-law spouse. It was reasonable for him to assume this was at the mother’s behest and that the mother did not want him involved with the child in any way. He had no contact with the child or the mother for many years and was not aware of their location or circumstances.

Circumstances of the child

[37] The mother testified that she and the child had relied on ODSP and shelter supports over the course of her childhood. The child has a sibling by another father who does not provide financial support. The mother stated that she was unable to provide the child with more than her basic needs during this time. She stated that the child’s needs are increasing as she is growing up and she would like to be able to provide her with extra-curricular activities and experiences.

Undue Hardship for the payor

[38] The father is in the final stages of his post-secondary studies before becoming qualified as a teacher. He was a full-time student working part time as an Uber driver for the time period between the child’s birth and the service of the Application. These efforts to advance his education have generated significant student debt. He also has ongoing financial responsibility for four other children in his care. His wife does not work outside of the home.

[39] The mother in this case terminated all contact with the father from the child’s birth to the date of the Application. She did not seek child support or any parental involvement from the father. The father had been warned to stay away from the child by the mother’s abusive common-law partner. The father worked to support his other five children and to enhance his earnings capacity during this period of time. His diligent efforts increased his future earnings capacity (as a teacher) but have negatively affected his current net worth (student debts.)

[40] In the circumstances, a consideration of the D.B.S. factors do not warrant a departure from the presumptive date for the commencement of child support. The mother has not provided a compelling reason for her delay in asking the father for financial assistance or in commencing her application for child support. Her common-law partner was deported when the child was two years of age and she did not reach out to the father for another five years.

[41] Further, it would cause significant undue hardship to the payor to use the court’s discretion to depart from this date. He has ongoing financial responsibility for four other children and significant student debt. It is noted as well that this debt was incurred in pursuit of a remunerative career path as a French speaking teacher in Toronto. The child will benefit from his teacher qualification through reliable ongoing child support once he graduates and begins work as a teacher.

[42] Accordingly, the court will not depart from the presumptive date for the commencement of support. The start date for child support is the date of formal notice and it will commence on August 6, 2019.

Part Six – Child Support Payable from August 6, 2019 to February 1, 2021

[43] The court must now determine the quantum of child support payable for the period from August 6, 2019 to February 1, 2021.

[44] The father filed sworn financial statements for the period in question which were supported by extensive tax and employment documentation. The mother is not seeking to impute income to him.

[45] The father’s tax information for 2019 reflects a total income of $11,339.00. There is no child support owing for the 2019 year under the guidelines.

[46] The father provided his 2020 Notice of Assessment. This reflects a total income of $41,743. His guidelines table amount for one child at this income is $378 each month. Accordingly, the total child support owing in 2020 is $4,536 ($378 x 12) for 2020.

[47] The father’s final child support order for 2021 commencing on February 1, 2021 is for the monthly amount of $359.00 based on the father’s annual salary of $40,077.88. He will pay the guideline amount for January of 2021 based on this salary. The child support owing for January 2021 is $360.00.

[48] The total arrears owing for the period from August 6, 2019 to February 1, 2021 is $4,896.00 minus any child support already paid. No evidence was led as to father’s child support payments to date for this period. He is to be given full credit for all child support payments made through the Family Responsibility Office to date.

Part Seven – Conclusion

[49] A final order shall go on the following terms:

(a) Based on an annual income of $41,743 the father shall pay child support to the mother of $378.00 per month commencing January 1, 2020. This is the guidelines table amount for one child. (b) Based on an annual income of $40,077.88 per month, the father shall pay child support to the mother of $360.00 per month commencing January 1, 2021. This is the guidelines table amount for one child. (c) The arrears created by this order shall be paid by the father to the mother in the amount of $150.00 each month, starting on March 1, 2023. (d) Nothing in this order precludes the Family Responsibility Office from enforcing arrears from any government source such as income tax or GST/HST refunds, or from any lottery or prize winnings. (e) Support Deduction Order to issue. (f) The father shall provide the mother with complete copies of his income tax returns, including all attachments and schedules, as well as the complete corporate returns of any business he operates, and his Notices of Assessment by June 30th each year, starting in 2023. (g) The balance of the claims of the parties are dismissed.

[50] If either party seeks costs of this trial they shall serve and file written submissions by February 24, 2023. The other party will then have until March 10, 2023 to serve and file their written response (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator’s office.

Released: February 14, 2023 Signed: Justice D. Szandtner.