CITATION: Marchan v. Clarke, 2023 ONCJ 483

DATE: October 27, 2023

COURT FILE NO. D91779/16

ONTARIO COURT OF JUSTICE

B E T W E E N:

JOSEPHINE MARCHAN

ACTING IN PERSON

APPLICANT

• and -

JEMMIEL TYRONE YANNICK CLARKE

JOHNATHAN D. PECCHIA, for the RESPONDENT

RESPONDENT

HEARD: OCTOBER 23, 2023

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 February 8, 2017 (the existing order).[^1]

[2] The existing order was made after an uncontested hearing. The father’s annual income was imputed at $50,000. He was ordered to pay child support of $450 each month for the parties’ 12-year-old son (the child), starting on October 1, 2011.

[3] The father asks the court to change the existing order so that his support obligations are based on the higher of his actual income or minimum-wage income, retroactive to October 1, 2011.

[4] During the trial, the father said that he was agreeable to the child being added to his extended health plan that he has available to him through his place of employment.

[5] The applicant (the mother) asks the court to dismiss the father’s motion to change. In her response to motion to change, she seeks an order requiring the father to contribute to the child’s orthodontic expenses (section 7 expenses), pursuant to section 7 of the Child Support Guidelines (the guidelines).

[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 for child support to be changed?

c) Should the court deviate from the presumptive start date?

d) At what level should the court assess the father’s income in any year it determines that child support should be changed?

e) What amount, if any, should the father contribute to the child’s section 7 expenses?

f) How should any support arrears owing be paid?

Part Two – Brief background facts

[7] The parties are both 36 years old. The mother deposed that they never cohabited. They are the child’s parents.

[8] The mother has two children who live with her from other relationships.

[9] The father lives with a new partner. They have had two children together who live with them. The father also has a child from another relationship. That child does not live with him.

[10] The mother issued an application regarding parenting and support issues on November 2, 2016. The father did not respond.

[11] Justice Curtis made the existing order on an uncontested basis.[^2]

[12] The evidence presented to Justice Curtis at that hearing was set out in the mother’s Form 23C affidavit. That evidence included the following:

a) The father is serving a four-year sentence at a federal penitentiary. He was convicted of gun possession and gang related offences.

b) Prior to his incarceration the father drove a Mercedes Benz.

c) The father has taken many luxury vacations.

d) The father has posted numerous pictures of stacks of cash in his possession on social media. The pictures showed him wearing expensive clothing.

e) The father has paid no child support since the child’s birth.

f) The child has special needs.

g) The father has abandoned the child and has no relationship with him.

h) The father has ignored the mother’s attempts to reach him. He has instructed his family not to disclose his whereabouts to the mother.

[13] The father issued this motion to change on September 22, 2021.

[14] The father’s support arrears as of October 1, 2023 are $43,575.87, according to the records of the Family Responsibility Office.

Part Three – The evidence

[15] The father deposed that:

a) He has never earned the income imputed to him in the existing order. At paragraph 24 of his trial affidavit, he set out his income by year. The highest amount was in 2014 when he earned $27,667. In most other years, he claimed annual income under $12,500. Since 2017, he set out his income as follows:

2017 - $5,334

2018 - $0

2019 - $29,671

2020 - $43,459

2021 - $36,781

2022 - $40,251

b) He was in jail from September 2011 until August 2013.

c) He lived with the mother from August 2013 until the spring of 2014, when they ended their relationship.

d) He paid cash support to the mother until November 2015.

e) He was charged in November 2015 with organized crime and the distribution and selling of firearms. He was on bail for one year.

f) In October 2016, he entered into a plea deal and was sentenced to five years in prison.

g) He did not contest the initial family court application because he was in prison. He understood that he could make new financial arrangements once he was released from prison.

h) He was released from prison in December 2018 and resided in a half-way house until June 2019.

i) He started working as a drywall labourer apprentice in July 2019. He was laid off in November 2020 due to a shortage of work.

j) In August 2021 he obtained full time work as a drywaller at a new company.

k) He usually works 8 to 9 months each year. When the weather is bad, he is laid off and collects Employment Insurance.

l) In July 2023 he obtained a better paying job as a drywaller. He is paid $34.11 per hour. He does not receive overtime.

m) He pays child support of $250 to $300 each month for his 18-year-old daughter. This is not pursuant to a court order.

n) His other two children, ages 4 and 8 months, live with him and his partner.

o) His partner works as an event planner and shares household expenses with him.

[16] The mother deposed that:

a) She never cohabited with the father.

b) The father has never voluntarily paid child support to her.

c) The father has gone on vacations since he was released from prison.

d) The father continues to live a lavish lifestyle, wearing expensive designer clothing.

e) The father has always earned unreported “street money” to support his lifestyle.

f) The father supports his other children but refuses to support the child.

g) The father has the ability to pay the support ordered in the existing order.

h) She is paying $125 each month for the child’s orthodontic expenses. This is a subsidized and reduced amount.

i) She supports herself on social assistance payments and Canada Child Benefits.

[17] The court found the mother to be a far more credible witness than the father.

[18] The court is far more inclined to believe a parent who has solely raised a special needs child than a parent who has essentially abandoned the child and has totally neglected his child support obligations.

[19] The father acknowledged in cross-examination that he has never voluntarily paid child support for the child. However, he supports his other three children and took a vacation in 2022 to a resort in Jamaica. When asked why he had failed to voluntarily pay support, the father offered the tepid excuse that, “I guess I was waiting for the outcome of this case”.

[20] The father had the opportunity to assert that he had lived with mother and had paid her child support when the mother first applied to court in 2016. He chose not to participate in that case. The court does not accept his evidence.

[21] The court accepts the mother’s evidence where it conflicts with the father’s evidence.

Part Four – The start date for support adjustment

4.1 Legal considerations

[22] 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.

[23] 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.

[24] The child’s interest in a fair standard of support commensurate with income is the core interest to which all rules and principles must yield. A fair result that adequately protects this interest will sometimes lean toward preserving certainty, and sometimes toward flexibility. See: Colucci v. Colucci, 2021 SCC 24, par. 4.

[25] In Michel v. Graydon, 2020 SCC 24, the Supreme Court of Canada made the following observations about retroactive support that are germane to this case:

a) Courts must also turn their minds to other forms of marginalization in the courtroom. The gendered dimensions of poverty at different times mirror or obscure its intersections with race, disability, religion, gender modality, sexual orientation and socioeconomic class. The judiciary must take these differences into account and give them their due weight in considering the tests at issue. In the end, a system that can account for the social dynamics which act to impoverish certain members of society over others, or to prevent them from accessing the courtroom and reclaiming their rights, is a fairer system for all (par. 101).

b) The neglect or refusal to pay child support is strongly linked to child poverty and female poverty (par. 121).

c) Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. (par. 25).

[26] The Supreme Court of Canada set out the framework for deciding applications to decrease support retroactively at paragraph 113 in Colucci 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.

[27] 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.

[28] 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.

[29] In Trang v. Trang, 2013 ONSC 1980, Justice Alex Pazaratz made the following observations about the challenges of changing a support order where the court imputed income:

51. When a court imputes income, that’s a determination of a fact. It’s not an estimate. It’s not a guess. It’s not a provisional order awaiting better disclosure, or further review. It’s a determination that the court had to calculate a number, because it didn’t feel it was appropriate to rely on – or wait for -- representations from the payor.

52. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income. The payor’s representations as to income should now be accepted, even if they weren’t accepted before; or

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

53. If “declared income” automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications – as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

54. Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.

55. Imputed income matters. The reason why income had to be imputed matters.

56. If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.

57. But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct – and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.

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

[30] The father states that there has been a material change in circumstances because he has never earned the income that was imputed to him in the existing order, and that he has now presented the evidence showing this. He also submits that his release from jail and inability to earn the income imputed to him in the existing order is a material change in circumstances.

[31] 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.

[32] 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.

[33] The court is not bound to impute income at the payor’s previous income level if it decides to impute income due to the payor’s reckless behaviour or misconduct. It can impute income in an amount different than what the payor had been earning, or it can impute different amounts of income for different time periods. Courts have a significant degree of discretion when imputing income. See: Menegaldo v. Menegaldo, 2012 ONSC 2915; Tillmans v. Tillmans, 2014 ONSC 6773; Gordon v. Wilkins, 2020 ONCJ 114.

[34] In Malcolm v. McGee, 2017 ONCJ 357, this court observed that at a certain point, an existing order can become unrealistic and unjust due to a payor’s changed circumstances – no matter if those changed circumstances were caused by the payor’s misconduct. The court should conduct a contextual examination of all the circumstances in determining the support amounts it should order. In Malcolm, where the payor was fired for cause, no support adjustment was made for 7 months – the order was reduced for 4 months, then imputed at a higher level (but less than the original amount).

[35] This is not a straight-forward analysis.

[36] The court does not accept the father’s submission that there has been a material change in circumstances because he did not earn the income imputed to him in the existing order, as reflected in his self-declared income from 2011 to 2017.

[37] The mother attested to the lifestyle the father lived prior to the existing order. He took luxury vacations, drove a luxury car and wore designer clothing. The father did not credibly refute that evidence at this trial. It makes little sense that he was earning less than $12,500 for most of those years. He was healthy and capable of working. He had the opportunity to contest the mother’s allegations about his lifestyle in the original application and chose to ignore the case. An adverse inference is drawn against him. The court accepts the mother’s evidence that he was likely earning undeclared annual income of at least $50,000 during that time.

[38] It is also not a material change in circumstances that the father was sentenced to jail for five years starting in 2016 and was not earning income while he was in prison until the end of 2018. The evidence of his incarceration was squarely before Justice Curtis when she made the existing order. Justice Curtis clearly followed the line of cases imputing income to payors who are not earning income due to their own fault or misconduct. That case law sets out that children should not be disadvantaged due to a payor’s misconduct that results in a reduction of their income. See for example: Billingsley v. Billingsley, 2010 ONSC 3381; S.H. v. R.R.A., 2016 ONCJ 255.

[39] However, the court finds that the father met the low threshold required to show a material change in circumstances once he was released from jail in December 2018. Since that time, there is no evidence that the father has returned to a criminal lifestyle. He has regularly worked since 2019 and his earnings have been documented by his employers. This is a significant change from how he conducted his affairs prior to 2016 when he led a comfortable lifestyle yet reported nominal income. The court will not impute additional income to the father after 2019 for the purpose of the support analysis. He has been earning what he has been capable of earning since then.

[40] The existing order imposed a financial consequence to the father while he was in jail due to his criminal misconduct. The court finds that the proper balance between prioritizing the child’s need for child support with the reality of the father’s income-earning ability dictates finding that there was a material change in circumstances once he was released from jail in December 2018 and could not earn the income imputed to him in the existing order.

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

[41] 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.

[42] The court accepts the mother’s evidence that the father first broached the subject of changing the support order with her in October 2020. They had a meeting. The father wanted to negotiate a new support order. The mother raised the issue of the child’s orthodontic costs. They did not reach an agreement.

[43] The court finds that the presumptive start date to change child support is October 1, 2020.

[44] The court must next determine whether it should deviate from the presumptive start date to change support.

[45] The father provided an understandable reason for his delay in issuing his motion to change. When he was released from jail in December 2018, he was released to a half-way house outside of Toronto. When he came back to Toronto, he looked for counsel. Then, courthouse operations were suspended in 2020 because of the pandemic.

[46] The father’s conduct has been egregiously blameworthy. He admitted that he has not voluntarily paid support to the mother for the child. He agreed that any amounts collected by the Family Responsibility Office have been through federal diversions.

[47] The father has preferred his own interests to those of the child’s. He testified that he supports his other children but has not supported this child. A vacation to a resort in Jamaica in 2022 took priority to paying child support for the child.

[48] The mother explained how the financial circumstances of the child have been disadvantaged by the father’s failure to pay child support. The mother deposed that she has had to scrape by to feed and clothe the child. She cannot buy school outfits that the child’s friends have. She cannot enroll him in as many activities as she would like.

[49] The father will have hardship. He supports three children on a modest income. However, the court has limited sympathy for him. He has neglected his child support obligations for the child. He has had two more children since being released from jail without supporting the child. Any hardship to him can be adequately addressed through a payment order over a reasonable time period.

[50] The court has considerable sympathy and respect for the mother. She has resourcefully done an excellent job raising a special needs child without any help from the father. The child has speech and language issues and has seizures. Significantly reducing the support arrears would cause her and the child hardship.

[51] The court will not deviate from the presumptive start date of October 1, 2020

Part Five – Table support calculation

[52] The father’s income in 2020 was $43,459. The monthly guidelines table amount for one child at this income was $400.

[53] The father’s income in 2021 was $36,781. The monthly guidelines table amount for one child at this income was $323.

[54] The father’s income in 2022 was $40,251. The monthly guidelines table amount for one child at this income was $362.

[55] The father provided very limited documentary financial disclosure for 2023. He only provided one September paystub. It showed that he now earns $34.11 per hour for a 37.5 hour work week. The father said that the paystub reflects his weekly earnings. He does not earn overtime. The father said that this income also reflects a pay raise from his new job. He started this job in July 2023.

[56] The father said that he worked at another company as a drywaller from January to March in 2023 and that he received Employment Insurance from April to June. The father could not recall how much he earned from those sources.

[57] Assuming the father worked 37.5 hours each week for the first company in 2023 at $28 per hour, he would have earned approximately $13,650. From his new job he will earn approximately $33,254 for 6 months ($1,279 each week for 26 weeks). This totals $46,904. He also received Employment Insurance. The court will assess the father’s 2023 income at $50,000.[^3] The guidelines table amount for one child at this income is $461.

[58] The father’s income will increase in 2024 given his pay raise from his new employer. The father testified that he works about 9 months each year as a drywaller and receives Employment Insurance for the balance of the year. For 9 months he should earn $49,881 ($1,279 each week for 39 weeks). He should earn about another $6,000 from Employment Insurance. The court will assess his income on an ongoing basis, starting on January 1, 2024, at $55,881. The monthly guidelines table amount for one child at this income is $516.

Part Six – Section 7 expenses

[59] The court finds that the child’s orthodontic expenses are eligible section 7 expenses. They are reasonable and necessary. These expenses are subsidized due to the mother’s limited financial circumstances. The mother has been paying these expenses alone. She asked the father to contribute to them and he refused.

[60] The mother has been paying $125 each month towards the orthodontic expenses since at least July 1, 2023. She said that the total amount of the orthodontic expenses will be about $4,300.

[61] The father said that he is prepared to cover the child on his extended health plan that is available to him through his place of employment. That will be ordered. However, he did not provide evidence that orthodontic expenses are covered on this plan.

[62] Software analysis indicates that in 2023, based on the father’s income of $50,000, his proportionate share of the section 7 expenses, after taking into consideration any tax benefits or credits to the mother, is $109 each month. This will be ordered starting on July 1, 2023.

[63] The father’s contribution to the child’s section 7 expenses starting on January 1, 2024, increases to $111 each month, based on his assessed income of $55,881.[^4]

Part Seven – Calculation of adjustments and payment of arrears

[64] This order creates a support credit for the father of $183 in 2020 ($461 - $400 x 3 months).

[65] This order creates a support credit for the father of $1,656 in 2021 ($461 – $323 x 12 months).

[66] This order creates a support credit for the father of $1,188 in 2022 ($461 – $362 x 12 months).

[67] This order creates an additional support obligation to the father of $436 in 2023 ($109 for section 7 expenses x 4 months) up until the end of October.

[68] Accordingly, the father’s support arrears should be reduced by $2,591 to the end of October 2023 ($183 plus $1,656 plus $1,188 minus $436).

[69] The court recognizes that the father has created a deep financial hole for himself. It will give him the opportunity to pay his support arrears over 8 years. This results in a monthly payment of about $425 each month. However, if he is more than 30 days late in making any ongoing or arrears support payment, the full amount of arrears then owing shall immediately become due and payable.

Part Eight – Conclusion

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

a) The father’s support arrears are to be reduced by $2,591 as of October 31, 2023, as calculated in this decision. This will reduce his support arrears to $40,984.87.

b) The father may pay his outstanding arrears at the rate of $425 each month starting on December 1, 2023. However, if he is more than 30 days late in making any ongoing or arrears support payment, the full amount of arrears then owing shall immediately become due and payable.

c) Starting on November 1, 2023, the existing order is changed to provide that the father shall pay the mother child support of $570 each month. This is comprised of the monthly guidelines table amount for one child of $461, based on his assessed 2023 income of $50,000, and his monthly contribution of $109 each month towards the child’s orthodontic section 7 expense.

d) Starting on January 1, 2024, the existing order is changed to provide that the father shall pay the mother child support of $627 each month. This is comprised of the monthly guidelines table amount for one child of $516, and his monthly contribution of $111 each month towards the child’s orthodontic section 7 expenses.

e) The mother shall advise the father and the Family Responsibility Office when payment of the child’s orthodontic expenses has been completed.

f) The father shall include the child on any extended health plan that he has available to him through his place of employment for so long as the child remains eligible for support. He shall provide proof to the mother of this coverage upon request.

g) A support deduction order shall issue.

h) The parties shall exchange their complete income tax returns and notices of assessment by June 30th each year.

i) The Family Responsibility Office is requested to adjust its records in accordance with this order.

[71] If either party wishes to seek their costs, they shall serve and file written submissions no later than November 10, 2023. The other party will have until November 24, 2023 to serve and file their written response (not to make their own submissions). The submissions should not exceed 2 pages, double-spaced, not including any bill of costs or offer to settle. They are to be submitted to the trial coordinator’s office.

Released: October 27, 2023

Justice Stanley B. Sherr

[^1]: The father also moved to change the parenting time terms in the existing order. A temporary parenting time order was made at the outset of the trial, on consent. [^2]: Justice Curtis also ordered that the mother have sole decision-making responsibility for the child and that the father have no parenting time with the child. She made a restraining order against the father. [^3]: The court draws an adverse inference against the father due to his failure to provide accurate disclosure of his income from the first company and Employment Insurance. [^4]: The software calculations are attached to this decision.