Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 06 14 COURT FILE No.: Toronto D81855-15A5

BETWEEN:

Nadia Bougataya Applicant

— AND —

Ismet Turkmen Respondent

Before: Justice Szandtner

Heard on: April 13, 2023 Reasons for Decision released on: June 14, 2023

Counsel: B. Berns, for Nadia Bougataya (applicant) A. Hussain, for Ismet Turkmen (respondent)

SZANDTNER J.:

Part One – Introduction

[1] This hearing was about the respondent Mr. Turkman’s (the father) motion to change the child support terms contained in the order of Justice Robert Spence dated May 19, 2016 (the existing order).

[2] The existing order was made after an uncontested hearing. The father’s annual income was imputed by Justice Spence at $79,352.00. He was ordered to pay child support of $1,164.00 for the parties’ two children each month, starting on May 1, 2016.

[3] The father is seeking a termination of the child support order dated May 19, 2016 and a complete rescission of the outstanding arrears. In the alternative, he asks that he be imputed minimum wage from 2016 to date and not be ordered to pay any ongoing support. He asks that any arrears owing be paid at a rate of $200.00 per month.

[4] The applicant Ms. Bougataya (the mother) asked the court to dismiss the father’s motion to change.

[5] The parties filed affidavits and financial statements as their direct evidence. They were each represented by counsel. Both parties declined the opportunity to cross-examine the other. Counsel made submissions on behalf of the parties.

[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e) Should any outstanding arrears be rescinded?

f) How should any support arrears owing be paid?

Part Two – Brief Background Facts

[7] The father is 65 years of age.

[8] The mother is 49 years of age.

[9] The parties were married in 2005 in Turkey. Their first child, A.T. was born in December 2006 in Italy.

[10] The father sponsored the mother to immigrate to Canada from Italy in November 2007.

[11] The parties separated in November 2007 but reconciled in 2009. During this period, their second child, R.T. was born in March of 2010.

[12] The parties separated in 2011.

[13] The father visited A.T. and R.T. (the children) on an inconsistent and sporadic basis.

[14] The mother issued an application in this court for custody and child support on October 26, 2015. The mother filed an Affidavit of Service reflecting personal service on the father by her friend Ms. Filalai on April 13, 2016.

[15] The father did not participate in the court proceeding. He did not attend any court appearances or file any documents.

[16] The father left Canada for Turkey on April 22, 2016. The existing order was made on May 19, 2016 on an uncontested basis.

[17] The father did not appeal the existing order. He did not move to set it aside.

[18] The father arrived back in Canada from Turkey on September 13, 2020. He received notice from the Family Responsibility Office (FRO) that he owed $61,692.00 in arrears.

[19] On January 19, 2021, the father served with mother with his Motion to Change.

[20] The father’s child support arrears, as of April 13, 2023, are $80,332.62.

Part Three – Father’s Position and Evidence

[21] The father deposed that he has never earned the $79,352.00 annual income imputed to him in the existing order.

[22] The father claims that he was not properly served with the mother’s application for child support in this court. He stated that he arrived at a McDonald’s to see the children on April 13, 2016 before he left for Turkey on April 22, 2016. The mother arrived with the children and her friend Ms. Filalai. The father claims that the mother put down an envelope and Ms. Filalai took a photograph. The mother then took back the envelope and left with the children. The father claims that she did not leave the documents with him. He believes that this was planned to allow the mother to obtain a court order without his knowledge.

[23] The father’s evidence with respect to his income is as follows:

a) In 2015, his total income reported to the CRA was $12,000.00.

b) He did not provide any business tax returns or financial statements for his plastering company.

c) In 2016, 2017, 2018 and 2019 he was residing in Turkey. He claims that he was not working and his income was zero.

d) In 2020 he earned $5,176.00 from Ontario Works.

e) His 2021 pre-bankruptcy Notice of Assessment reflects an income for 2021 of $8,521.00.

[24] The father states that prior to his relocation to Turkey he was employed as a plasterer. He operated his own business called One Star Plastering Ltd. He was not part of a union. He was an independent subcontractor and was paid by the job, not by the hour. He provided no disclosure relating to this business.

[25] The father relocated to Turkey to care for his ailing father. He did not work in Turkey and lived with his father. His father passed away on January 28, 2019.

[26] The father states that he does not currently own any property in Turkey. He admits that he purchased a house in Turkey in January 2014 and rented it out to tenants. He claims that “it ended up burning down and the bank took it from me.” No further details or documentation were disclosed.

[27] While in Turkey, the father began a relationship with another woman. They had a child together in 2019. The woman and his youngest child have remained in Turkey when the father returned to Canada in 2020.

[28] The father filed for bankruptcy in Canada on August 30, 2021.

[29] The father states that he has no regular physician in Canada. He goes to walk-in clinics for health services.

[30] The father states that he suffers from vertigo. He attached a letter from Dr. Ghattas dated June 30, 2021. The letter is brief and confirms that the father suffers from vertigo. It states as follows: “His first episode was March 2021 when he presented himself to the Emergency Room. He was later assessed by an ENT specialist. He continues to have symptoms occasionally.”

[31] He also secured a letter from Dr. Ali-Al-Hellawi who he had been seeing for a month. The doctor stated that the father suffers from “depression, diabetes and hypertension, general weakness, sleeping problems, anxiety and chronic vertigo.” According to Dr. Ali-Al-Hellawi, the father cannot work.

[32] The father no longer receives Ontario Works. He receives $819.25 per month from the Canadian Pension Plan. (CPP)

[33] The father admits that he made no voluntary child support payments for the children.

Part Four – Mother’s Position and Evidence

[34] The mother asked that the father’s motion to change be dismissed.

[35] The mother states that the father was properly served in person with her application and left for Turkey in 2016 fully aware of the court proceeding.

[36] The mother’s evidence is that the father was planning to relocate to Turkey in 2016. She states that he had his Acura vehicle shipped from Canada to Turkey.

[37] The mother states that she commenced her court application because the father was refusing to pay child support. Her friend Ms. Filalai served the father with the application at the McDonald’s. She and the father discussed the application after service when he asked her to withdraw it.

[38] The mother states that the father has failed to disclose the rental income that flowed to him from his residences in Turkey. She said that the father has a rental apartment in Turkey and owns a building with his brother. It is her position that he continues to have income from rental properties in Turkey.

[39] The mother’s evidence is that in 2011 the father went to Turkey and commenced a divorce application without her knowledge. As she was not in Turkey, she was unable to make claims for the equalization of property.

[40] The mother states that the father did not make any voluntary payments towards child support.

Part Five – The start date for any support adjustment

5.1 Legal considerations

[41] 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.

[42] 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.

[43] 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. v. S.R.G., 2006 SCC 37 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.

[44] 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 v. Colucci, 2021 SCC 24, par. 7.4

[45] In Colucci v. Colucci, 2021 SCC 24, 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).

[46] 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.

[47] 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 v. Michel, 2009 SCC 29, par. 124.

[48] 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 v. Michel, 2009 SCC 29, par. 125.

[49] 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 v. Michel, 2009 SCC 29, par. 126.

5.2 Has there been a material change in circumstances in the father’s income?

[50] 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 $79,352.00 that was imputed to him in the existing order. He has provided evidence of his age, his deteriorating health and his recent bankruptcy.

[51] 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.

Paragraph 1 of section 14 of the Child Support Guidelines (the guidelines) reads as follows:

Circumstances for variation

14. 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:

15. 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.

[52] Colucci v. Colucci, 2021 SCC 24 sets out the following guidance with respect to the threshold to be met to establish a change in circumstances:

a) A payor seeking a downward retroactive change must first show a past change in circumstances, as required under the legislation. Section 14 of the Guidelines lists situations constituting a change in circumstances including the coming into force of the Guidelines. A change in circumstances could also include a change that, if known at the time, would probably have resulted in different terms, such as a drop in income (par. 59).

b) The onus is on the party seeking a retroactive decrease to show a change in circumstances. In some cases that may be relatively straightforward: for example, establishing that the children are no longer legally entitled to support because they are no longer children of the marriage (par. 60).

c) Most commonly, the retroactive variation claim will be based on a material change in income. To meet the threshold, a decrease in income must be significant and have some degree of continuity, and it must be real and not one of choice. Trivial or short-lived changes are insufficient to justify a variation (par. 61).

d) The payor must have disclosed sufficient reliable evidence for the court to determine when and how far their income fell, and to ascertain whether the change was significant, long lasting, and not one of choice. A decision to retroactively decrease support can only be made based on “reliable, accurate and complete information”. The payor cannot ask the court to make findings on income that are contrary to the recipient’s interests “while at the same time shielding information that is relevant to the determination of their income behind a protective wall” (par. 62).

e) A payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order. This would “defeat the purpose of imputing income in the first place” and act as “a disincentive for payors to participate in the initial court process” (par. 63).

[53] The court always has discretion with respect to res judicata, and can consider fraud, fresh evidence or issues of fairness. The court has discretion under section 37 (2.1) (a) of the Family Law Act to retroactively recalculate support based on the correct income information (as opposed to imputed income), once it has found that there has been a change in circumstances. Trembley v. Daley, 2012 ONCA 780. This is permitted by s. 37 (2.1) of the Family Law Act.

[54] The father must establish that the material change is real, not of his choice and has some degree of continuity.

[55] The father in his motion to change is relying on his age, his recent bankruptcy and his medical condition in order to meet the threshold of a material change.

[56] The father’s age alone does not constitute a material change. The father’s bankruptcy also is not a material change in that no evidence was provided to prove that it was not his choice and was not connected to his decision to leave Canada for Turkey for six years.

[57] The father’s evidence of medical issues affecting his ability to work is weak and is not sufficient to meet the threshold of material change on its own. However, when considered in conjunction with his age and the physical demands of his trade as a plasterer the court finds that the threshold of a material change in circumstances is met.

[58] The court finds that the material change threshold was met in early 2021 when the evidence before the court reflects that his medical issues were identified. Therefore, his child support obligation cannot be changed prior to that month and year.

5.3 When is the presumptive start date for support to be changed?

[59] Colucci v. Colucci, 2021 SCC 24 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.

[60] Colucci v. Colucci, 2021 SCC 24 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”.

[61] There is no evidence before the court that the father alerted the mother prior to service with the Motion to Change of his change in circumstances. The father did not provide any evidence that he gave notice to the mother prior to the within motion. He provided no disclosure about his financial or medical circumstances to the mother on any earlier date.

[62] 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. The date of effective notice is the same as the date of formal notice. The presumptive start date to change support is January 20, 2021.

5.4 Should the court deviate from the presumptive start date to change support?

[63] The court must next determine whether it should deviate from the presumptive start date to change support. The factors the court must consider when deciding whether to depart from the presumptive date of retroactivity as established by D.B.S. v. S.R.G., 2006 SCC 37. 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

[64] The father brought his Motion to Change seven years after the existing order was made. He claims that he was not served with the application. He claims that he was completely unaware of the existing order. His evidence is that he was living in Turkey and caring for his father.

[65] The father’s evidence on the issue of service of the application is not credible. He admits that he was present at the McDonald’s on the date in question. He admits that Ms. Filalai was present. He even admits that he was photographed with an envelope. However, he asks the court to believe that the mother confiscated the envelope from him and that he had no knowledge of its contents.

[66] There is simply no rational motive for the mother to arrange for service and then thwart the service. She brought her application to secure financial support for her children from the father. Ensuring that the father had no knowledge of the claim for child support and any final order made is simply not in her or her children’s interests. Further, she gave evidence that the parties discussed the application following service.

[67] Accordingly, the court finds that there is no credible reason for the father’s seven-year delay in bringing the Motion to Change.

Conduct of the Payor Parent

[68] When the father left for Turkey, he was aware that he had two children residing with the mother. He was aware that they needed financial support.

[69] However, he failed to make any child support payments to the mother for the children. He essentially abandoned them both in terms of financial support and paternal contact. His physical absence from Canada did not prevent him from sending money to the mother and yet he failed to do so.

[70] The father also failed to provide any financial disclosure to the mother during this period of time.

[71] The court finds that the father’s failure to both make financial disclosure and to make any child support payments during the period following the existing order is clearly blameworthy conduct.

Circumstances of the Child

[72] The court finds that the circumstances of the children have been disadvantaged by the father’s failure to pay child support. The mother has assumed the entire financial responsibility for their care.

[73] The children were disadvantaged in terms of their stability and limited opportunities by not having the financial support of both parents.

Hardship to be caused by a Retroactive Award

[74] The father relies on his Notices of Assessment and his bankruptcy in Canada to argue that a payment of the accumulated arrears will create hardship for him.

[75] The mother claims that the father owns rental property in Turkey which creates a flow of income for him.

[76] The father has not provided full disclosure of information relating to his plastering business or related to his bankruptcy proceeding. The court has no documents relating to his business and a single document relating to the bankruptcy.

[77] On the evidence before the court, the father’s position that he has had no income during his years in Turkey lacks an air of reality. His affidavit makes a reference to his rental income as follows: “yes it was rented out to tenants, but it ended up burning down and the bank took it from me.” The father essentially admits that he was a landlord in Turkey but provided no proper disclosure of same.

[78] Given that the father lived for four years in Turkey, shipped his car over to Turkey and started another relationship and had another child in Turkey, the court finds the mother’s position that he enjoyed a flow of income in Turkey credible on a balance of probabilities.

[79] Accordingly, the court does not find on the evidence that a retroactive award will cause hardship for the father that cannot be mitigated through monthly payments.

[80] Following a consideration of the above factors, the court will not deviate from the presumptive start date of February 1, 2021 to change the child support order. It finds that this result is not unfair in these circumstances.

Part Six – Change to the existing order

6.1 Legal considerations for imputing income

[81] Section 19 of the Child Support Guidelines permits the court to impute income to a party as it considers appropriate.

[82] 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.).

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] O.J. No. 453, (Ont. Fam. Ct.).

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] O.J. No. 4142 (SCJ.). 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] O.J. No. 190 (SCJ) and Stoangi v. Petersen, [2006] O.J. No. 2902 (SCJ).

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] O.J. No. 3654, 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 CarswellOnt 562 (S.C.J.); 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.

6.2 Analysis

[83] The court makes the following findings of fact that assist with its analysis of what (if any) income should be imputed to the father:

a) The father is a trained plasterer.

b) He ran his own plastering company.

c) The father chose to leave his paid employment in 2016 and relocate from Toronto to Turkey.

d) He returned to Canada in 2020.

e) He is in receipt Ontario Works benefits, Canada Pension Plan Benefits and Old Age Security Benefits.

f) He is 65 years of age.

[84] The father is claiming that medical disability has affected his ability to work was supported by extremely weak evidence. The letters from the doctors are brief. They do not provide any prognosis, any medication prescribed, or referrals. They do not provide the court with adequate evidence of a total inability to work. Furthermore, the father failed to file any medical evidence from the last seven years spent in Turkey to substantiate any health issues that would impact his ability to work at any job.

[85] However, the father’s previous employment as a plasterer was physically demanding and he is now 65 years of age.

[86] While the father may not be able to return to his plastering job, his medical evidence is not sufficient to establish that he cannot work at a less physically demanding minimum wage job full time. The court finds that the father should have been working full time at a minimum wage job since February 1, 2021.

[87] The guidelines table amount for two children at an annual income of $31,250.00 for a payment of $478.00 per month. This will apply from February 1, 2021 to February 1, 2023.

[88] From February 1, 2023 and on an ongoing basis, the father’s annual imputed income is $41,000.00. This figure represents the minimum wage and the CPP pension monthly payment. The guidelines table amount is $611.00 for two children from February 1, 2023 onwards.

Part Seven – Rescission of arrears

[89] The father also asked the court to rescind the arrears owing because he will never be able to pay them. The mother opposed this request.

[90] This is a separate analysis from determining if there should be a downward variation of arrears.

[91] In Colucci v. Colucci, 2021 SCC 24, 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 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 hat 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.

[92] This is a stringent test for the father to meet. He did not meet it. This is not an exceptional case. Father has not established that he has been unable to work to provide for the children in the past or going forward.

[93] The court will not rescind any of the arrears. The father has engaged in significant blameworthy conduct. The father abandoned his children and left the country for years. He failed to make any voluntary child support payments during this time. He failed to make any financial disclosure during this time. His financial disclosure for the within Motion to Change is not fulsome.

Part Eight – Payment of Arrears

[94] The court will order that the father may pay the arrears at the rate of $300.00 each month. However, if he is more than 30 days late in making any ongoing or arrears support payments accrued after July 1, 2023, the entire amount of arrears then owing shall immediately become due and payable.

Part Nine – Conclusion

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

a) The existing order shall be changed to provide that, starting on February 1, 2021, the father shall pay child support to the mother of $478.00 each month. This is the guidelines table amount for two children based on an imputed annual income to him of $31,250.00.

b) As of February 1, 2023, the father shall pay child support to the mother of $611.00 each month. This is the guidelines table amount for two children based on an imputed annual income to him of $41,000.00

c) The father may pay the outstanding support arrears at $300.00 each month, starting on July 1, 2023. However, if he is more than 30 days late in making any ongoing or arrears support payments accrued after July 1, 2023, the entire amount of arrears then owing shall immediately become due and payable.

d) 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.

e) A support deduction order shall issue.

f) 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.

g) The father shall provide the mother with complete copies of his income tax returns and notices of assessment by June 30th each year.

h) 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.

[96] If either party seeks costs, they may serve and file written submissions by June 23, 2023. The other party will then have until June 30, 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.

[97] The court thanks counsel for their professional presentation of the case.

Released: June 14, 2023

Justice D. Szandtner