Court File and Parties

Date: December 1, 2023 Court File No.: D50213/10 Ontario Court of Justice

Between: SADA SARREYE, Applicant Pamela Jacobson, duty counsel, assisting the Applicant

- and –

AHMAD SHEIKHAMED, Respondent Peter Hutcheon, duty counsel, assisting the Respondent Cathy Tsagaris, agent for the Assignee, The City of Toronto

Heard: November 29, 2023

Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] This was the trial of the parties’ motions to change the child support terms contained in the court’s order dated July 16, 2010 (the existing order).

[2] The existing order required the respondent (the father) to pay the applicant (the mother) child support of $275 each month for four of the parties’ children. This was based on the father’s annual income of $14,500. The father was also required to provide the mother with annual financial disclosure, including his income tax returns and notices of assessment.

[3] The father seeks a retroactive reduction in child support. Specifically, he asks that his child support be set at zero between 2016 and 2019 as he claims that he earned no income during that time.

[4] The parties’ child S is 19 years old and is in her third year at Carleton University in Ottawa. The father asks that support be terminated for her.

[5] The parties’ child Ib is 17 years old. He is in high school and lives with the mother in Toronto. There is no dispute that he remains eligible for child support.

[6] The mother asks that the father’s motion to change be dismissed. She seeks a retroactive increase in child support, starting on January 1, 2022, for S and Ib, based on the father’s actual income.

[7] The mother assigned her interest in support to the City of Toronto (the assignee) for the period between January 1, 2013 and January 1, 2017. Support arrears of $13,403 are owed to the assignee.

[8] The assignee also asks that the father’s motion to change be dismissed.

[9] In addition to the support arrears owed to the assignee, the father owes the mother $2,110 pursuant to the existing order.

[10] The court relied on the affidavits and financial statements of the parties, an affidavit from one of their adult children, and an affidavit from the assignee. The parties briefly cross-examined each other. The assignee cross-examined the father.

[11] The parties were both unrepresented at trial. However, duty counsel were available to assist them. At the conclusion of the evidence, the court held the matter down and duty counsel assisted the parties in settlement negotiations. They advised the court that they could not reach an agreement and the trial was concluded.

[12] The issues for the court to determine are:

a) Has there been a material change in circumstances regarding support 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) Is S eligible for support, and if not, when did she become ineligible for support? f) Is the Child Support Guidelines (the guidelines) approach for S inappropriate for any year that she is eligible for support? If so: i. In what years is it inappropriate? ii. How much child support should the father be required to pay for her? g) How should support arrears be paid?

Part Two – Brief background facts

[13] The mother is 45 years old. The father is 50 years old.

[14] The parties married in 1988 and separated in 2007.

[15] The parties had seven children together. Five of the children are adults and are no longer eligible for child support. They are all university graduates.

[16] The mother raised the parties’ children alone after the parties separated.

[17] The mother issued her application for parenting and support orders in February 2010.

[18] The existing order was reached on consent.

[19] The father testified that he left Ontario and moved to Alberta in 2013. The mother said that she did not know where the father was until he returned to live in Ontario in December 2021.

[20] Child support for the parties’ child M ended in October 2016 and the Family Responsibility Office adjusted its records to collect support of $257 each month, being the guidelines table amount for three children.

[21] Child support for the parties’ child H ended in February 2018, and the Family Responsibility Office adjusted its records to collect support of $231 each month, being the guidelines table amount for two children.

[22] The father called the mother in 2020 after the Family Responsibility Office sent him notice of its intention to suspend his driver’s licence.

[23] The Family Responsibility Office commenced a notice of default hearing (the default proceeding) against the father in August 2022. That case is on adjournment awaiting the outcome of this motion to change.

[24] On January 3, 2023, in the default proceeding, the father consented to a temporary default order that he pay $231 each month for ongoing child support, together with $300 each month towards support arrears.

[25] The father issued this motion to change on March 23, 2023.

[26] The mother filed her response to motion to change on July 12, 2023.

Part Three – Positions and evidence of the parties

3.1 The father

[27] The father deposed in his affidavit that he moved to Alberta and was “stranded for several years without a job” until he ended up on social assistance and moved back to Ontario in December 2021.

[28] At trial, the father testified that:

a. He worked in Ontario as a certified electrician from 2011 to 2013. He said that he earned annual income of about $40,000. He acknowledged that he did not inform the mother about his increase in income and that he did not send her his income tax returns and notices of assessment, as required by the court order. b. In 2013, the company he worked for was moving to Hamilton. He chose to leave this job and move to Alberta. c. He started working in Alberta in 2013 as an electrician until he was laid off at the start of 2015. d. He collected Employment Insurance in 2015. e. He lived off savings of approximately $28,000 in 2016, 2017 and 2018. He earned no income. f. He looked for work in Alberta from 2025 to 2019 without success. g. He was in receipt of social assistance during 2019. h. He obtained a labour job in Alberta in 2020 but was soon laid off. i. He contacted the mother in 2020 because the Family Responsibility Office had started enforcement proceedings against him. He said that he asked her to agree to change the existing order and she refused. j. He acknowledged that he did not provide the mother with any information about his income prior to starting his motion to change.

[29] The father asks that his support obligation be reduced to zero for the years 2016 to 2019.

[30] The father also asks for an order that he not be required to pay ongoing support for S. He feels that he should not have to pay support because S will turn 20 years old in December, she is attending school and living in Ottawa, working part-time and receiving student loans.

[31] The father’s 2020 notice of assessment shows that he earned $32,930.

[32] The father’s 2021 notice of assessment shows that he earned $27,729.

[33] The father filed T4 summaries showing that he earned $41,726 in 2022.

[34] The father filed his year-to-date pay stub showing that he has earned income of $59,347 as of October 22, 2023. This projects to an annual income of $73,477 for 2023. The father testified that he does mechanical work for his current employer.

3.2 The mother

[35] The mother asks that the father’s motion to change be dismissed.

[36] The mother denies that the father asked her to reduce child support when he called her in 2020. He only complained about the Family Responsibility Office enforcing the existing order.

[37] The mother seeks an order that child support be increased for S and Ib in accordance with the father’s income, starting on January 1, 2022.

[38] The mother is not seeking an increase in child support for 2011 to 2013, when the father said that he was earning annual income of $40,000 and had accumulated $28,000 of savings.

[39] The mother is also not seeking an increase in support for 2020 and 2021, even though the father’s income was much higher than the $14,500 his support was based on in the existing order.

[40] This was a very reasonable position taken by the mother.

[41] The mother testified that S lived at home during her first year of university in 2021/2022 and attended classes virtually.

[42] The mother said that S has lived with her adult sister in Ottawa during her second and third years of school at Carleton University in Ottawa.

[43] S is taking an undergraduate degree majoring in international relations. The mother said that S should complete that degree in April 2025. S may go to law school, she said, once she completes this degree.

[44] The mother set out S’s budget while living in Ottawa. It was very reasonable. S has monthly expenses of about $1,740. These expenses were corroborated by S’s older sister H. S’s tuition costs total $9,332 for the 2023/2024 school year. The mother said that S’s living and tuition costs were about the same in 2022/2023.

[45] The mother testified that S lives with her when university is not in session – this would be during the summer break, winter school break and reading weeks.

[46] S has contributed to her own support by working. She earned $4,739 in 2022. S also receives student loans. She does not receive grants or bursaries.

[47] The mother deposed that she works part-time as a cleaner and earns about $20,000 annually. She also receives some social assistance.

Part Four – The start date for support adjustment

4.1 Legal considerations

[48] The father issued his motion to change on March 23, 2023. Support since that date is prospective support and is presumptively payable. See: Mackinnon v. Mackinnon. The change in support requested by the father before that date requires a retroactive support analysis.

[49] The parties’ motions to change support are 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.

[50] 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.

[51] A 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 (Colucci).

[52] 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).

[53] 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.

[54] The court in Colucci set out the framework for deciding applications to increase support retroactively at paragraph 114 as follows:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers. b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor. c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice. d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income. e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[55] Colucci refers to the following factors to consider as set out in D.B.S. v. S.R.G., 2006 SCC 37:

1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
2. The conduct of the payor parent.
3. The circumstances of the child.
4. The hardship that the retroactive award may entail.

[56] 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).

[57] In considering delay, courts should look at whether the reason for delay is understandable, not whether there was a reasonable excuse for the delay. The latter consideration works to implicitly attribute blame onto parents who delay applications for child support. See: Michel, par. 121.

[58] A delay, in itself, is not inherently unreasonable and the mere fact of a delay does not prejudice an application, as not all factors need to be present for a retroactive award to be granted. See: Michel, par. 113.

[59] Rather, a delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. See: Michel, par. 86.

[60] The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor’s interest in certainty. See: Michel, par. 34.

[61] Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.

[62] Blameworthy conduct is anything that privileges the payor parent’s own interests over his or her children’s right to an appropriate amount of support. See: D.B.S., par. 106.

[63] Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award. See: Michel, par. 119.

[64] 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, par. 123.

[65] 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.

[66] 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.

4.2 Analysis

[67] The court finds that there have been material changes in circumstances since the existing order was made. The father’s income significantly increased from 2011 to 2013, and then again from 2020 to present. Two of the four children are no longer eligible for support. S is now in university and lives most of the year in Ottawa.

[68] The next step is to determine the presumptive start date for support to be changed.

[69] Taking the father’s case at its highest, he broached the subject of reducing support with the mother early in 2020. Since Colucci sets out that the presumptive start date cannot be more than three years before the date of formal notice (March 23, 2023), the earliest the presumptive start date can be is March 23, 2020.

[70] However, the analysis does not stop there. The father acknowledged that he did not provide the mother with any financial disclosure from the date of the existing order until he issued his motion to change. This was despite the requirement in the existing order for him to provide the mother with annual disclosure of his income tax returns and notices of assessment. The mother had no financial information to reasonably evaluate the father’s request to reduce child support.

[71] Accordingly, the court finds that the date of effective notice by the father is the same date as formal notice – March 23, 2023. This is the presumptive start date for consideration of a downward reduction in child support.

[72] The mother acknowledges that she did not seek an increase in support from the father until she issued her response to motion to change – July 12, 2023. This is the presumptive start date for a consideration of her request for an increase in child support.

[73] The next step is to determine if the court should deviate from these presumptive start dates.

[74] The father did not provide an understandable reason for his delay in seeking a support adjustment. He brought this motion to change as a reaction to the default proceeding started by the Family Responsibility Office.

[75] The mother provided understandable reasons for her delay in seeking an increase in child support. The father provided her with no financial disclosure upon which she could reasonably evaluate if an increase was warranted. He disappeared soon after the existing order was made and she had no idea where he was until December 2021.

[76] The father has engaged in blameworthy conduct. His payment history for an order based on a very modest income is abysmal. He breached the existing order to provide annual financial disclosure to the mother. He did not advise her of significant increases in his income between 2011 and 2013 and again, since 2020. He accumulated savings while the mother was on public assistance. He claimed that he could not find work between 2015 and 2019. He provided no evidence of job searches. He is trained as an electrician and a mechanic. He acknowledged that he continued to pay his rent, drive a car and pay for insurance during those years in Alberta. He just chose not to pay any child support.

[77] The court finds that the father was likely working for cash from 2015 to 2019. Otherwise, he would have been unable to support himself.

[78] The mother’s conduct has been exemplary. She is a single mother who has raised seven children (the three oldest children are triplets and in their early 30’s) on her own with few financial resources and no help from the father. Six of her children are university-educated. When asked if Ib would be attending university she answered, “of course”.

[79] The circumstances of S and Ib have been disadvantaged by the father’s failure to pay appropriate child support. The mother has been on social assistance. She deposed how they often had to use food banks and the children couldn’t afford to go on school trips. The children did not have their own rooms and study desks.

[80] The father is now earning a good income. A retroactive order will not cause him hardship if his arrears can be paid over a reasonable period of time. Not ordering retroactive support would cause hardship to the mother, and to S, who faces large student loans.

[81] The court will deviate from the presumptive start dates and adjust the father’s support obligation, to start on January 1, 2022. Given the extent of the father’s blameworthy conduct, this is a conservative retroactive support determination.

[82] The father’s motion to change the existing support order downwards is dismissed.

Part Five – S’s eligibility for support

[83] The father submits that S is no longer eligible for support because she is almost 20 years old, attending school in Ottawa and in receipt of student loans and employment income.

[84] Subsection 31 (1) of the Family Law Act provides that each parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full-time program of education, or is unable by reason of illness, disability or other cause to withdraw from the charge of their parents.

[85] The onus of establishing the entitlement of an adult child to support is on the party seeking the support. See: Rebenchuk v. Rebenchuk, 2007 MBCA 22.

[86] The court finds that S remains eligible for support. The mother met her onus of showing that S is enrolled in a full-time program of education. S lives with the mother during the summer and school breaks. She has not withdrawn from the mother’s parental control. The child’s income and her student loans are relevant to the amount of support that will be paid for her – not her eligibility for support.

Part 6 – Is the guidelines amount of support inappropriate for S?

6.1 Legal considerations

[87] Subsection 3 (1) and 3 (2) of the Child Support Guidelines set out the amount of child support to be paid to a child. Specifically, subsection 3 (2) sets out how much child support should be paid to a child over the age of majority. Those subsections read as follows:

Presumptive rule

3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

[88] Where a child is 18 years or older and is entitled to support, there are two possibilities with respect to the table amount portion of support: either the table amount is to be paid or, if the table amount is inappropriate, an amount is to be paid that the court considers appropriate. In determining what is appropriate, the court needs to consider the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute. See: Albert v. Albert.

[89] Most courts now find the guideline amount inappropriate when a child attends university out-of-town and only returns home during the summer and school breaks. Although each case must be examined on its own facts, most courts will order the full table amount in the months the child is living at home with a lesser amount when the child is away at school. See: Park v. Thompson; Coghill v. Coghill; Douglas v. Douglas, 2013 ONCJ 242; Proctor v. Klammer, 2023 ONSC 5279 (Divisional Court).

[90] Providing the court with evidence of the costs required to maintain a home for a child who is away at university is important in cases of this nature. See Douglas v. Douglas, supra, par. 64.

6.2 Analysis

[91] The court finds that the guidelines amount of support is not inappropriate for S for the period from January 1, 2022 until August 31, 2022. This is because S was living at home with her mother in Toronto and attending university virtually. There was no difference in her living circumstances than from when she was attending high school the year before.

[92] Starting on September 1, 2022, the court finds that the guidelines amount of support is inappropriate. This is because S began living eight months of the year with her older sister in Ottawa. It would not be fair to require the father to contribute towards her post-secondary expenses and pay the table amount of child support while S is away at school.

[93] The court will only order the father to pay the table amount of support for S for the 4 months each year that she lives with the mother in Toronto.

[94] The court received no evidence of additional costs to the mother to maintain a home for S while she is away at school. The mother lives modestly in her apartment with Ib and an adult son. She incurs no additional expenses to maintain the home for S. She would be incurring the same expenses if S did not return home. The court will not order the father to pay additional support for the time that the child is living in Ottawa.

Part Seven – Child support calculations for 2022

[95] The father earned $41,726 in 2022. The guidelines table amount for two children at this income is $620 each month. This totals $4,960 for 8 months.

[96] In addition, S’s post-secondary expenses are special expenses pursuant to clause 7 (1) (e) of the guidelines (section 7 expenses).

[97] Subsection 7 (2) of the guidelines states that the guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense the contribution, if any, from the child. This is just a guiding principle. The court has the discretion not to apply it.

[98] Generally, the courts will only require a child to contribute to their education by taking out and assuming responsibility for student loans as a last resort, where the means of the child and those of the parents are insufficient to cover the child’s education and living expenses: Naveed v. Nasir, 2016 ONSC 7878, at para. 45; Jackson v. Jackson, 2021 ONSC 2614.

[99] Most courts are reluctant to allow the payor parent to avoid child support obligations by requiring that the child rely on student loans since student loans are just costs that must be repaid when the child finishes school. See: Caterini v. Zaccaria, 2010 ONSC 6473, [2010] O.J. No. 5291, at para. 203. While student loans are often available to serve as temporary assistance for those in financial need, as stated above, they simply delay the expense rather than defraying it.

[100] The court will treat the father’s contribution to S’s section 7 expenses differently for 2022 than it will starting in 2023. He was still earning a modest income in 2022 and the expectations of parents with the incomes of these parties would be that S would need to contribute more to her education. The court will fix the father’s contribution to S’s section 7 expenses for 2022 at 20%.

[101] S’s section 7 expenses from September to December 2022 were as follows (see paragraph 44 above):

$1,740 each month for 4 months = $6,960 Tuition = $4,666 Total: $11,626 Father’s 20% share: $2,325

[102] The guidelines table amount for Ib for 4 months in 2022 was $378 each month for 4 months, being $1,520.

[103] Accordingly, the father’s support obligations for 2022 totals $8,805, calculated as follows:

Table amount for 2 children for 8 months = $4,960 Table amount for 1 child for 4 months = $1,520 Share of S’s section 7 expenses = $2,325 Total: $8,805

[104] The Family Responsibility Office was calculating the father’s support obligation during 2022 at $231 each month, for a total of $2,772. Accordingly, the father’s support arrears for 2022 should be increased by $6,033 ($8,805 - $2,772).

Part Eight – Child support calculations for 2023

[105] Where, as here, the current amount of income earned is known, it is that amount that should determine the quantum of support that should be paid. See: Vanos v. Vanos, 2010 ONCA 876; Wright v. Christie, 2011 ONCJ 109.

[106] The court has been provided with the father’s year-to-date income for 2023 up until October 22, 2023. This is the best evidence of the father’s 2023 income. His income projects to $73,477 in 2023. The guidelines table amount for two children at this income is $1,117 each month. The father shall be required to pay this amount from May to August in 2023. For one child, the guidelines table amount is $686 each month. The father shall be required to pay this amount for the other eight months in 2023.

[107] S’s section 7 expenses for 2023 are as follows:

$1,740 each month for 8 months in Ottawa = $13,920 Tuition = $9,332 Total = $23,252

[108] The father’s income significantly increased in 2023. The court will exercise its discretion and order the father to pay 30% of these expenses starting on January 1, 2023. This results in monthly payments of $581.30 ($23,352 times 30%, divided by 12 months).

[109] Accordingly, the father’s child support obligation for 2023 totals $16,932, calculated as follows:

Table amount for 2 children, being $1,117 for 4 months = $4,468 Table amount for 1 child, being $686 for 8 months = $5,488 Share of S’s section 7 expenses, being $581.30 for 12 months = $6,976 Total: $16,932

[110] The Family Responsibility Office was calculating the father’s support obligation during 2023 at $231 each month, for a total of $2,772. Accordingly, the father’s support arrears for 2023 should be increased by $14,160 ($16,932 - $2,772).

[111] Combined with the additional arrears created by this order in 2022 ($6,033), the Family Responsibility Office should add $20,193 to the father’s support arrears.

Part Nine – Ongoing support

[112] The father’s ongoing child support obligations shall be the same starting on January 1, 2024 as they were in 2023. He is to pay:

The table amount for 2 children of $1,117 each month for May to August (4 months). The table amount for 1 child of $682 each month for every month but May to August (8 months). $581.30 each month for his contribution to S’s post-secondary expenses.

[113] As in 2023, this will result in an annual support amount of $16,932. For ease of payment and enforcement, the court will spread the support payments out evenly over the course of the year and order that the father shall pay the mother child support of $1,411 each month, starting on January 1, 2024.

Part Ten – Payment of arrears

[114] The court dismissed the father’s motion to reduce the arrears owing to the assignee and the mother.

[115] The arrears owing to the assignee remain at $13,403.

[116] The arrears owing to the mother, after this decision, are now $22,303 ($2,110 previously owed plus $20,193, created by this order).

[117] The mother and the assignee asked that the support arrears be paid at $100 each month. This was a very reasonable request and will be ordered. The father will have a short-term financial squeeze with his support obligations. However, once the children are no longer eligible for support, it is appropriate that he pay his arrears in a timely manner. Once the mother notifies the father and the Family Responsibility Office that both children are no longer eligible for support, the father shall pay the remaining arrears at $1,000 each month until they are paid in full.

[118] The assignee agreed that arrears should first be paid to the mother. This will be ordered.

Part Eleven – Conclusion

[119] An order shall go on the following terms:

a) The father’s motion to change is dismissed. b) The existing order for child support is changed in its entirety starting on January 1, 2022. c) The father shall pay the mother $8,805 for the support of S and Ib for 2022, calculated as follows: Table amount for 2 children for 8 months = $4,960 Table amount for 1 child for 4 months = $1,520 Share of S’s post-secondary section 7 expenses = $2,325 Total: $8,805 d) The father shall pay the mother $16,932 for the support of S and Ib for 2023, calculated as follows: Table amount for 2 children, being $1,117 for 4 months = $4,468 Table amount for 1 child, being $686 for 8 months = $5,488 Share of S’s post-secondary section 7 expenses, being $581.30 x 12 months = $6,976 Total: $16,932 e) Starting on January 1, 2024, the father shall pay the mother child support of $1,411 each month, calculated as follows: Table amount for 2 children of $1,117 each month for May to August (4 months). Table amount for 1 child of $682 each month for every month but May to August (8 months). $581.30 each month for his contribution to S’s post-secondary section 7 expenses. f) The additional support arrears created by this order are $20,193 and are payable to the mother. g) The father shall pay support arrears at $100 each month, starting on January 1, 2024, until such time as S and Ib are no longer eligible for support. Once the last child ceases to be eligible for support, the father shall pay the arrears at the rate of $1,000 each month until they are paid in full. h) Support arrears shall first be paid to the mother. Once her arrears are satisfied, the arrears shall be applied to the $13,403 owing to the assignee. i) Nothing in this order precludes the Family Responsibility Office from collecting support arrears from any government source, or lottery or prize winnings. j) The mother shall immediately notify the father and the Family Responsibility Office once S and Ib are no longer in full-time attendance at school. k) The parties shall exchange their complete income tax returns and notices of assessment by June 30th each year. l) The mother shall provide the father with proof that the children are in a full-time course of education by June 30th each year. m) A support deduction order shall issue.

[120] The mother and the assignee are the successful parties in this case. If they seek their costs, they may serve and file written submissions by December 15, 2023. The father will then have until December 29, 2023 to serve and file any written response. The submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. They are to be submitted by email or in person to the trial coordinator’s office.

[121] The court thanks duty counsel for their assistance and efforts to settle this matter.

Released: December 1, 2023

Justice Stanley B. Sherr