COURT FILE NO. D43808/08 DATE: June 20, 2024

ONTARIO COURT OF JUSTICE

B E T W E E N:

MAUREEN KANDICE RODRIGUEZ

APPLICANT

• and –

MICHAEL THOMAS BELL

RESPONDENT

BEFORE: Justice S.B. Sherr

COUNSEL: Aron David, for the Applicant Michael Thomas Bell, Acting in Person

HEARD: June 18, 2024

REASONS FOR DECISION

Part One – Introduction

[1] This hearing was about the parties’ motions to change the child support terms contained in the court’s order dated September 7, 2012 (the existing order) for their 20-year-old daughter (the daughter).

[2] The respondent (the father) seeks to terminate child support as of June 30, 2022. This is when the daughter completed high school. The daughter did not attend school again until September 2023, when she began a liberal arts program at Seneca College.

[3] The applicant (the mother) asks the court to dismiss the father’s motion to change. She also seeks a retroactive increase in child support, starting on January 1, 2013. [1]

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

a) Did the father’s child support obligation for the daughter end on June 30, 2022? In particular:

i) Was there a change in circumstances since the existing order was made?

ii) Was the daughter still eligible to receive child support when she was out of school for 14 months, and if so, how much?

b) If the father’s child support obligation is terminated as requested by him, should it be revived as of September 1, 2023?

c) Was there a material change in circumstances regarding the father’s income prior to June 30, 2022?

d) If so, when is the presumptive start date that child support should be changed?

e) Should the court deviate from the presumptive start date, and if so, when should the change in child support start?

f) How much child support should the father pay for every year from the start date? In particular, what, if any, income should be imputed to him each year for the purpose of the child support calculation?

Part Two – Background facts

[5] The mother is 41 years old. The father is 46 years old.

[6] The parties briefly cohabited from May to July 2005.

[7] The daughter is the only child the parties had together.

[8] The existing order granted custody of the daughter to the mother and specified access to the father. The father was ordered to pay child support to the mother of $172 each month, starting on September 15, 2012. The existing order provided that child support should be adjusted annually on July 15 and that the parties should exchange their income tax returns and notices of assessment each year by July 1.

[9] The father issued his motion to change the existing order on May 15, 2023.

[10] The mother issued her response to motion to change on September 8, 2023.

[11] On November 17, 2023, the court ordered the father to serve and file specified financial disclosure, including his 2012 to 2020 notices of assessments. He did not do this.

[12] On January 31, 2024, the court endorsed that the father’s disclosure was incomplete. On consent, on a temporary without prejudice basis, the court ordered the father to pay child support of $297 each month, starting on March 1, 2024. This is the Child Support Guidelines (the guidelines) table amount for one child based on an annual income of $34,424. The case was adjourned until April 10, 2024.

[13] The father did not attend at court on April 10, 2024 and the hearing of the motions to change was scheduled. The court ordered the father to serve and file an updated sworn financial statement by May 10, 2024. He did not do this. The parties were both given the opportunity to file supplementary affidavits. The mother did this. The father did not. The court endorsed that the motions to change would be heard based on the written evidence filed.

[14] The records of the Family Responsibility Office show the father was $3,270 in arrears of child support as of March 15, 2023. An updated statement of arrears was not provided to the court for this hearing.

Part Three – Entitlement to child support

[15] The father asks that his child support obligation for the daughter be terminated as of June 30, 2022. This is when the daughter finished high school. She was 18 years old at the time.

[16] The mother submitted that the daughter remained entitled to support after June 30, 2022 because she was unable to withdraw from the charge of the parents. In the alternative, she submits that support should be revived from the time the daughter returned to school in September 2023.

[17] Subsection 37 (2.1) of the Family Law Act (the Act) permits the court to change a support order prospectively or retroactively if there has been a change in circumstances since the last order was made. The court finds that when the daughter did not return to school for the 2022/2023 school year, this was a change in circumstances permitting it to assess whether the existing order should be changed.

[18] Section 31 of the Act sets out a parent’s obligation to support a child as follows:

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

[19] 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.

[20] In their paper, Child Support for Adult Children in Canada: When Does Childhood End?, 2023Docs 1212, Nicholas Bala and John Abrams, write at page 27:

Generally, if an adult child without disabilities ceases to attend school, and has only vague plans to return, the support obligation ends. However, if the child leaves school for a year or less, where there is a clear plan to return, the support obligation may be continued during that period, especially if the child is earning income and the child’s saving from that period may reduce later parental obligations. If the support obligation has ended and the period out of school is less than two years, the courts will usually allow the support obligation to be reinstated, and in some cases, reinstate support when a child has been out of school for up to three years.

[21] Some courts have continued support for an adult child when the child takes a gap year from attending school. See: Edwards v. Edwards, 2021 ONSC 1550; Leonard v. Leonard, 2019 ONSC 4848; Hickling v. Coates, 2022 ONSC 5455. This approach will be referred to as approach number one.

[22] Other courts have either terminated or suspended support for adult children when they stopped attending school full-time and have then revived it once they return to school. See: F. (R.L.) v. F. (S.), 26 R.F.L. (4th) 392 (Ontario General Division); MacLennan v. MacLennan, 2003 NSCA 9. Entitlement to support was suspended and revived after a 16-month school hiatus by this court in MacLean v. Taylor, 2014 ONCJ 449 and terminated and revived after a 14-month school hiatus in Stephenson v. Thomas, 2014 ONCJ 669. In Bishop v. McKinney, 2015 ONSC 5565, the father’s obligation to pay child support was suspended following the daughter’s graduation from high school but resumed following her enrollment at university a year and a half later. In R.J. v. T.J., 2021 ONCJ 137, the adult child had an 8-month hiatus from school. It was agreed that there should be no support payable for that period. Support was revived when there was a two-year gap for a 21-year-old child in Haley v. Haley, [2008] O.J. No. 293 (SCJ). This approach will be referred to as approach number two.

[23] Each fact situation must be analyzed carefully. Specifically, the time that the child was out of school must be considered. See: Lawless v. Asaro.

[24] The court does not have to make a binary choice between approach number one and approach number two. The court has the discretion with an adult child to determine that the guidelines approach is inappropriate and order a different amount if it finds the adult child remains eligible for support during a gap year. This would be approach number three. [2] The authority to do this is set out in subsection 3 (2) of the guidelines that reads as follows:

Child the age of majority or over

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child 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 parent or spouse to contribute to the support of the child.

[25] The court finds in the particular circumstances of this case that the fairest approach to take is approach number two for the following reasons:

a) As of June 30, 2022, the daughter did not meet the criteria for eligibility set out in subsection 31 (1) of the Act. She was not a minor, not enrolled in a full-time program of education and she had no illness, disability or other cause that made her unable to withdraw from the charge of her parents.

b) The mother deposed that the daughter took the time off school to decompress from her studies and travel the world. The daughter traveled to Italy, the Vatican, Spain, France and Mexico. [1] The mother said that the daughter spent time with extended family and friends. This was an adult choice by the daughter. The father did not approve of this plan or agree to contribute to the daughter’s travel costs. [2]

c) The father deposed that he had discussions with the daughter about entering the trades industry with him. Instead, the daughter decided to return to school.

d) The daughter chose not to work, even on a part-time basis, during those 14 months. She didn’t engage in part-time studies. The father did not agree with those choices.

e) The parties have very limited financial means. The father earns a modest income and struggles to support himself. The mother deposed that she has not worked for several years and is suffering from the effects of long Covid. It is not fair, given this family’s economic circumstances, to require the father to pay child support for these 14 months when the adult daughter was not in school, traveling the world, and not contributing anything towards her own support. [3]

f) In her response to the motion to change, the mother agreed that support should not be paid for the gap year. She changed that position when she filed her affidavit for the hearing. [4]

[26] The court finds that the daughter became entitled to support again on September 1, 2023. The 14‑month gap after the daughter finished high school is not unusual, as young people often take a pause to consider their future. See: Edwards, supra, paragraph 44. The daughter plans to continue her education at York University for the 2024/2025 school year. The daughter’s present education path is a reasonable one and should be encouraged by her parents.

[27] The father’s motion to change is granted in part. The existing order is changed to provide that the daughter was not entitled to support between July 1, 2022 and August 31, 2023. The father will be credited for the support accrued during that time.

Part Four – The mother’s motion to change support

4.1 Legal considerations

[28] The mother’s motion to change support is also governed by subsection 37 (2.1) of the Act.

[29] Any support claimed after an application is issued is prospective support, not retroactive support and is presumptively payable. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.). That presumption was not rebutted by the father.

[30] In Colucci v. Colucci, 2021 SCC 24, the court set out the framework that should be applied for retroactive applications to increase support in paragraph 114 as follows:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors [3] continue to guide this exercise of discretion, as described in Michel. [4] 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.

[31] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, par. 25.

[32] Retroactive awards are not exceptional. They can always be avoided by proper payment. See: D.B.S., par. 97.

[33] In Michel, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty.

4.2 Has there been a material change in circumstances regarding child support?

[34] The first step in the Colucci framework is to determine if there has been a material change in circumstances regarding child support.

[35] The threshold for a person to establish a material change in circumstances in income is fairly low. See: Retroactive Support after Colucci, by Professor Rollie Thompson, 40 CFLQ 61 and Kerr v. Moussa, 2023 ONCJ 1; Marchan v. Clarke, 2023 ONCJ 483.

[36] Paragraph 1 of section 14 of 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.

[37] There has been a material change in circumstances in the father’s income. By 2021, according to his evidence, his annual income had increased from $21,500 in the existing order to $40,849.

4.3 What is the presumptive start date when child support should be changed?

[38] The mother provided no evidence that she broached the topic of increasing child support with the father prior to issuing her response to motion to change. Accordingly, the date of effective notice is the same as the date of formal notice. The presumptive start date to change support is September 8, 2023.

4.4 Should the court deviate from the presumptive start date?

[39] The mother asks to deviate from the presumptive start date. She initially requested a start date to increase support of January 1, 2013, but proposed an alternative start date of January 1, 2017 in her submissions.

4.4.1 Reasons for delay

[40] 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.

[41] 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.

[42] 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. A delay motivated by any one of the reasons set out below should generally not be understood as arbitrary within the meaning of D.B.S.

a) Fear of reprisal/violence from the other parent.

b) Prohibitive costs of litigation or fear of protracted litigation.

c) Lack of information or misinformation over the payor parent’s income.

d) Fear of counter-application for custody.

e) The payor leaving the jurisdiction or the recipient unable to contact the payor parent.

f) Illness/disability of a child or the custodian.

g) Lack of emotional means.

h) Wanting the child and the payor to maintain a positive relationship or avoid the child’s involvement.

i) Ongoing discussions in view of reconciliation, settlement negotiations or mediation.

j) The deliberate delay of the application or the trial by the payor.

These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other fear and danger. See: Michel - par. 86).

[43] The mother provided understandable reasons for delaying in bringing her motion to change child support, being:

a) The existing order required the father to provide her with annual financial disclosure. He did not comply with the order. She had little basis to assess if she should seek increased child support.

b) There was protracted litigation between the parties between 2008 and 2012. It was understandable that the mother did not want to re-engage with the father and deal with the costs of more litigation.

[44] However, these are not understandable reasons for the extent of the delay (11 years). The mother did not ask for financial disclosure from the father. She did not provide her own financial disclosure to the father, as required by the existing order. She had some reciprocal responsibility for moving the matter forward.

4.4.2 Blameworthy conduct

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

[46] 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.

[47] 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.

[48] The father has engaged in blameworthy conduct as follows:

a) He breached the existing order by failing to provide the mother with annual financial disclosure as required in the existing order.

b) He failed to advise the mother about his increases in annual income.

c) He failed to increase his child support payments in accordance with his annual income. He knew or should have known he was underpaying child support to the mother. [5]

d) He failed to provide meaningful financial disclosure to the mother. He did not produce any notices of assessment. He did not provide an updated financial statement as ordered.

4.4.3 Circumstances of the daughter

[49] 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.

[50] The mother provided no evidence that the circumstances of the daughter were disadvantaged by the failure of the father to pay the appropriate amount of support. The court recognizes that the mother has less money than she should have because the father did not pay appropriate support.

4.4.4. Hardship

[51] 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.

[52] 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.

[53] The court finds that a retroactive support order, particularly as sought by the mother, will cause the father hardship. He earns a modest income. The mother did not provide any evidence of hardship she would have if she did not receive retroactive support.

4.4.5 Start date to change support

[54] The dominant factor in this case is the father’s blameworthy conduct. He failed to comply with court orders to provide annual financial disclosure and to increase his support in accordance with his income. The court finds that it is fair in these circumstances to deviate from the presumptive start date and to retroactively change support starting on January 1, 2018.

Part Five – The father’s income and calculation of arrears as of August 31, 2023

[55] The final step in the Colucci framework is to quantify the proper amount of support for each year from the start date of retroactivity.

5.1 Legal principles for imputing income

[56] Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.

[57] 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 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.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.

c) 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.

d) 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.

e) The court may impute income where it finds that a party has hidden or misrepresented relevant information respecting their income to the other party or to the authorities. This includes cases where the evidence indicates that a party earns cash income that they do not declare for income tax purposes. See: Kinsella v. Mills, 2020 ONSC 4785; Prillo v. Homer, 2023 ONCJ 8.

f) The court can also impute income where the evidence respecting income is not credible for any other reason. See: Heard v. Heard, 2014 ONCA 196 (C.A.), at paras. 33-35; Gostevskikh v. Gostevskikh, 2018 BCSC 1441 (S.C.); M.A.B. v. M.G.C., 2022 ONSC 7207.

g) 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.

h) A person’s lifestyle can provide the basis for imputing income. See: Aitken v. Aitken [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373; Prillo v. Homer, 2023 ONCJ 8.

5.2 The evidence and imputation of income

[58] The mother asked to impute the father’s annual income at $30,000 for 2018 and 2019, $35,000 for 2020, $45,000 for 2021, $50,000 for 2022 and $55,000, starting in 2023.

[59] The father provided limited evidence about his financial circumstances. He did not comply with the financial disclosure orders. He did not provide his notices of assessment. He failed to file an updated sworn financial statement. He provided no supporting evidence for his 2023 and 2024 income. An adverse inference is drawn against him.

[60] At the hearing, the father submitted for the first time that he has medical reasons for not working. He had been given opportunities to file affidavit evidence and medical evidence for the trial and was ordered to file a new financial statement. He chose not to do this. The court only considered the evidence properly filed for these motions.

[61] The father provided some tax slips to the mother showing the following annual income:

2018 $15,611 2019 $19,735 2020 $33,622 2021 $40,849 2022 $37,804

[62] There was no way to determine if the father provided all his tax slips to the mother.

[63] The tax slips provided by the father indicate that he has worked in glass installation and repair, construction and at a restaurant. The father has had many employers and appears to have a scattered work history. According to his financial statement, he leads a modest lifestyle.

[64] The father deposed that he had a significant increase in income in 2020 (about a 70% increase from 2019) and then again in 2021 (about a further 21% increase from 2020). He provided no evidence that there has been a significant change in his income since 2021.

[65] The father’s evidence about his income was inconsistent and unreliable. For instance:

a) He deposed in his motion to change that he earned $27,000 in 2020. His tax slips provided added up to $33,672.

b) He deposed in his motion to change that he earned $35,000 in 2021. His tax slips provided added up to $40,849.

c) He deposed in his financial statement that he earned $45,000 in 2022. In his motion to change, he attested that he earned $40,000. The tax slips he provided came to $37,804.

[66] The court considered that the father is likely earning some cash income he is not reporting to Revenue Canada. He did not deny the mother’s evidence that there is a cash component to his income. For 2022, this might explain that the income of $45,000 in his financial statement exceeds the tax slips of $37,904. The cash component of the father’s income should also be grossed up. [6]

[67] The court finds that the mother’s proposed graduated imputation of the father’s income is reasonable and likely pretty accurate. With some modifications, the court will impute income to the father as requested by the mother. The court finds that he has earned or has been capable of earning income as follows:

a) Starting on January 1, 2018 - $35,000. The guidelines table amount for one child at this income is $245 each month.

b) Starting on January 1, 2020 - $42,500. The guidelines table amount for one child at this income is $387 each month.

c) Starting on January 1, 2022 - $50,000. The guidelines table amount for one child at this income is $461 each month.

5.3 Calculation of additional arrears until August 31, 2023

[68] Between January 1, 2018 and June 30, 2022, an additional $8,646 of support is owing by the father to the mother, arising from this order, calculated as follows:

2018 and 2019 ($245 – $172) = $73 x 24 months) = $1,752 2020 and 2021 ($387 – $172) = $215 x 24 months) = $5,160 2022 ($461 - $172) = $289 x 6 months = $1,734 Total additional arrears $8,646

[69] The court will credit the father with the $172 each month that accrued pursuant to the existing order between July 1, 2022 and August 31, 2023 (when the daughter was ineligible for support). This totals $2,408 ($172 x 14 months). This leaves net additional arrears owing of $6,238 ($8,646 - $2,408), as of August 31, 2023.

Part Six – Ongoing support and current arrears

[70] The daughter was 19 years old when support for her was revived by this decision on September 1, 2023. Accordingly, the court must consider subsection 3 (2) of the guidelines and determine whether the guidelines approach is inappropriate.

[71] The court finds that the guidelines approach in this case is appropriate. The daughter is living at home and attending school in Toronto. She is not working during the school year. The mother is not seeking a contribution from the father towards the daughter’s post-secondary school expenses.

[72] Between September 1, 2023 and June 30, 2024, an additional $2,890 of support is owing to the mother arising from this order. This is based on the differential of $289 each month in guidelines table payments ($461 - $172) for 10 months, based on the father’s imputed annual income of $50,000.

[73] The additional arrears owing to the mother as of June 30, 2024, as created by this order, are $9,128 ($6,238, as set out in paragraph 69, plus $2,890). This is in addition to the arrears presently owing to the mother as reflected in the records of the Family Responsibility Office.

Part Seven – Conclusion

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

a) The sum of $9,128, as calculated in this decision, is to be added to the arrears owing by the father to the mother, as presently reflected in the records of the Family Responsibility Office.

b) The existing order is changed to provide that starting on July 1, 2024, the father is to pay the mother child support of $461 each month. This is the guidelines table amount for one child, based on an imputed annual income to the father of $50,000.

c) The father shall provide the mother with complete copies of his income tax returns, including all schedules and attachments, and his notices of assessment, by June 30 each year.

d) The mother shall advise both the father and the Family Responsibility Office when the child stops attending full time post-secondary education.

e) A support deduction order shall issue.

[75] If either party seeks their costs, they are to serve and file written submissions by July 4, 2024. The other party will then have until July 18, 2024 to make a written response. The submissions should not exceed three pages, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinator’s office on the second floor of the courthouse.

[76] The court thanks the mother’s counsel for his professional presentation of this case.

Released: June 20, 2024

Justice Stanley B. Sherr

Footnotes

[1] During submissions, she indicated a willingness to start the support increase on January 1, 2017.

[2] The court will not take this approach in this case. However, it is an option for lawyers and courts to consider in the appropriate circumstances.

[1] The court was not provided with an explanation about how the daughter’s travel was funded.

[2] The father’s participation in discussions of his adult child’s travel plans for a gap year was a factor in continuing the child’s eligibility for support in Leonard, supra.

[3] In Edwards, supra and in Leonard, supra, both being approach number one cases listed above, the payors earned over $100,000 annually. In Hickling, annual income of $57,000 was imputed to the payor.

[4] See page 5 of the response to motion to change. At other points in her response to motion to change, the mother states she is agreeable to no support being paid during the gap year if the court finds that is fair.

[3] See: D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37. These factors are:

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.

[4] See: Michel v. Graydon, 2020 SCC 25.

[5] The court considered that from the father’s perspective, his income did not increase above $21,300 until 2020 and he was not required to increase his support payments. However, even in his best-case scenario he should have increased support at that time.

[6] Grossing up income is done to ensure consistency of treatment where a party is found to have arranged his affairs to pay less tax on income. See: Sarafinchin v. Sarafinchin, [2000] O.J. No. 2855 (Ont. S.C.); Prillo v. Homer, 2023 ONCJ 8.