Crightney v. Garcia, 2024 ONCJ 431
CITATION: Crightney v. Garcia, 2024 ONCJ 431
DATE: September 9, 2024
COURT FILE NO. D480292/09
ONTARIO COURT OF JUSTICE
B E T W E E N:
BATALMEA CRIGHTNEY
MEAGAN H. D’MELLO, for the APPLICANT, RESPONDING PARTY ON THE MOTION TO CHANGE
APPLICANT
- and –
EMILY GARCIA
SOPHIE DHAMI, for the RESPONDENT, MOVING PARTY ON THE MOTION TO CHANGE
RESPONDENT
CITY OF TORONTO
ASSIGNEE
MASAI SHAW, agent for the CITY OF TORONTO, ASSIGNEE
HEARD: AUGUST 29 and SEPTEMBER 6, 2024
JUSTICE S.B. SHERR
REASONS FOR DECISION
Part One – Introduction
[1] The respondent (the mother) has brought a motion to change the child support provisions contained in the court’s order dated September 17, 2010 (the existing order), for the parties’ 16-year-old daughter (the child).
[2] The existing order requires the applicant (the father) to pay the mother child support of $169 each month, based on an annual income of $19,604. It set up a mechanism for payment of special and extraordinary expenses (section 7 expenses) pursuant to section 7 of the Child Support Guidelines (the guidelines). It required the father to annually provide the mother with his income tax returns and notices of assessment. It also required him to advise the mother within a week of any changes to his income or employment status.
[3] The mother seeks retroactive child support back to January 1, 2011, in accordance with the father’s annual income since then. The mother asks that the father’s annual income be imputed at $136,154, starting on January 1, 2023, and that he be ordered to pay child support starting on January 1, 2023, of $1,194 each month.
[4] The mother assigned her interest in support, for the period prior to February 2017, to the City of Toronto (the assignee). The assignee supported the mother’s position.
[5] The father, in his response to motion to change, asked that the mother’s motion to change be dismissed, although in his draft order prepared for trial, he sought an order to pay ongoing child support based upon an annual income of $34,000. If retroactive support is ordered, he asks to be credited for expenses he paid on behalf of the child. It is his position he has supported the child in excess of what was required under the guidelines.
[6] The father claims there has been a shared parenting arrangement for the child since the existing order was made. He asks to impute annual minimum wage income to the mother for the purpose of conducting a shared parenting support analysis pursuant to section 9 of the guidelines and for calculating her share of section 7 expenses, if retroactive support is ordered.
[7] The father has also claimed undue hardship pursuant to section 10 of the guidelines, if the court decides to impute annual income to him over $34,000, after January 1, 2023.
[8] In his draft order, the father sought an order for the mother to pay him $80,445.26 for overpayment of support. He did not include this relief in his pleadings and raised it for the first time just prior to the trial. The court ruled at the outset of the trial it would not consider this claim.
[9] It is fundamental to the litigation process that cases be decided within the boundaries of the pleadings. See: Rodaro v. Royal Bank of Canada (2002), 2002 41834 (ON CA), 59 O.R. (3d) 74, [2002] O.J. No. 1365 (C.A.); Hav-A-Kar Leasing Ltd. v. Vekselshtein, 2012 ONCA 826; Bennett v. Reeves, [2014] ONCJ 145; A.M. v. S.D., 2020 ONCJ 479. Draft orders can include details of claims that have been pled but they should not include new claims. For instance, in Matos v. Dreisman, 2024 ONCA 271, the court upheld a trial decision where section 7 expenses were claimed even though the particulars were not outlined in the application, as the head of relief was not new. If a party wishes to make a new claim, or raise a new defense, they must amend their pleading. The court found that the mother would be prejudiced by having to defend this new claim at this late stage.[^1]
[10] The court considered the payments made by the father for the child’s benefit, including section 7 expenses paid, when determining what support credits to apply against the mother’s retroactive support claim. The father included this defence in an affidavit filed together with his response to motion to change. The mother had notice of this claim from the outset of the case.
[11] The court also considered the father’s claim for undue hardship, as he served and filed an amended affidavit, sworn on May 6, 2024, setting out this defence. The mother had sufficient notice of this claim and was not prejudiced by it.
[12] The parties agreed to a focused hearing of the motion to change. The court relied on the parties’ financial statements, affidavits and oral evidence. No one else testified. The parties agreed on time limits for cross-examination that were expanded when it was apparent more time was required to properly hear the case. The agent for the assignee was permitted to cross-examine the father and make submissions.
[13] The issues for the court to determine are:
a) Has there been a material change in circumstances in the father’s income?
b) When was the date of effective notice to change the existing support order?
c) What is the presumptive start date when support should be changed?
d) Should the court deviate from the presumptive start date, and if so, when should support be changed?
e) How much child support should the father pay for every year from the start date support should be changed? In assessing this issue, the court must also determine:
i) Has there been a shared parenting arrangement for the child, and if so, when?
ii) If the court finds there was a shared parenting arrangement, should it impute income to the mother for the purpose of the support calculation?
iii) If the court finds there was a shared parenting arrangement, what child support was payable each year applying section 9 of the guidelines?
iv) At what times did the child primarily live with the father?
v) Should income be imputed to the father, and if so, how much, and for what years?
vi) Should the father’s support obligation be reduced starting on January 1, 2023, based on undue hardship, pursuant to section 10 of the guidelines?
f) What credits, if any, should the father receive for: payments he made for the child’s benefit, including the mother’s share of any section 7 expenses?
Part Two – Background facts
[14] The mother is 43 years old. The father is 40 years old.
[15] The parties never cohabited. They had the one child together.
[16] The mother issued an application for custody and child support on June 8, 2009.
[17] The parties resolved that application on consent. The consent was incorporated into the existing order. The mother has custody of the child. The order provides that the father have access with the child on two out of every three weekends and that holidays are shared between the parties.
[18] The mother has three other children. An adult child recently left her home. The mother testified she does not receive child support from the fathers of her other children.
[19] The mother deposed she has been in receipt of social assistance since the existing order was made, except for an 18-month period in 2012 and 2013 when she worked as a Personal Support Worker.
[20] The mother said she suffers from anxiety and has been diagnosed with ADHD.
[21] The father is married and has five children with his wife. They range in age from eight months to 16 years old. He said he separated from his wife early in January 2024 and he is paying child support to her of $600 each month.
[22] The father is self-employed as an immigration consultant. His business is incorporated. He is its sole owner and operator.
[23] The parties agreed the child lived with the father from June 2019 until March 2020.
[24] The mother issued her motion to change on September 29, 2023. The father issued his response to motion to change on December 27, 2023.
[25] The child is living with the mother. She is entering grade 12.
Part Three – Legislative considerations and the Colucci framework
[26] Any support claimed after an application or motion to change is issued is prospective support, not retroactive support. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.); Cumor v. Mohamud, 2024 ONCJ 162.
[27] The mother’s motion to change support is governed by subsection 37 (2.1) of the Family Law Act (the 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.
[28] The court’s authority to make a retroactive support order on a motion to change is contained in clause 34 (1) (f) of the Act. This clause reads as follows:
Powers of court
34 (1) In an application under section 33, the court may make an interim or final order,
…….(f) requiring that support be paid in respect of any period before the date of the order;
[29] 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[^2] continue to guide this exercise of discretion, as described in Michel.[^3] 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.
[30] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel, par. 25.
[31] Retroactive child support is a debt; by default, there is no reason why it should not be awarded unless there are strong reasons not to do so. See: Michel, par. 132.
[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.
Part Four – Has there been a material change in circumstances?
[34] There has been a material change in circumstances since the existing order was made. The father’s income has increased substantially. In 2011, it was $48,070. It dipped between 2012 and 2014 and increased to $55,671 in 2015. From 2017 until 2022, it ranged from $78,780 to $122,159.
Part Five – What is the date of effective notice and the presumptive start date for support to change?
[35] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that the current amount needs to be renegotiated. All that is required is for the subject to be broached. Once that has been done, the payor can no longer assume that the status quo is fair. See: D.B.S., par. 121.
[36] Although effective notice can be as little as broaching the topic in conversation, formal notice is something more, generally taking the form of written correspondence from the recipient or counsel or the commencement of legal proceedings. See: Wilkinson v. Wilkinson, 2008 ONCJ 96; Vandenberghe v Dittrick, 2024 ABKB 58; Wilson v. Johnson, 2024 ONCJ 6, per: Justice Carole Curtis.
[37] The mother claims she first broached the subject of increasing support with the father in 2011. She says she often requested income tax returns from him without success. The father claims the mother did not ask him for his income tax returns and did not seek an increase in support until he received a letter from her lawyer on July 6, 2022. He submits July 6, 2022 is the date of effective notice.
[38] The mother’s evidence was more credible. She provided a text message dated July 23, 2013, asking the father for his 2010-2012 income tax returns. She also provided social media exchanges between the parties in March and June 2016. During these exchanges the mother complains about the paltry support the father is paying, asks for his income tax returns and more support. The father wrote the mother that if she attempted to seek more support from him, she would end up with less.[^4] The mother also provided evidence of social media exchanges in 2020 where she sought more support from the father.
[39] The father claims he did not receive several of these social media messages from the mother. He was not credible. In the 2016 and 2020 exchanges he was often responding to her – it was a discussion. For example, on May 13, 2016, the mother complained to the father that he gives her “peanuts” for the child and asked him to send her money. The father responded (sic):
Take me to court in Gona also ask for a reduction in my support swing as how my slaty is less that what I’m to pay. Also your sopouse to drop (child) to me every other week now since you have a car.
After further exchanges the father wrote:
Why don’t you ask your other baby dads for money. I’m not her to support all your other kids. I only have the one with you and I tell you all the time if (child) needs something then let me know.
[40] The father sent one income tax return to the mother. It was his 2014 income tax return, where he reported income of $13,335. This buttresses the mother’s evidence that she had asked for the father’s income tax returns and the father had told her he was making less money than when the existing order was made.
[41] The court finds it is not a coincidence that the father only provided the mother with one income tax return showing an income lower than the income set out in the existing order. If he had provided any of his other income tax returns, as required, they would have shown he was earning much more income than when the existing order was made. The court order required annual financial disclosure and for the father to inform the mother when he obtained employment. He breached that order.
[42] The court finds the father deceived the mother about his income.
[43] The court finds the mother broached the issue of changing child support by May 2013, at the latest.
[44] Colucci sets out that the presumptive start date cannot be more than three years before the date of formal notice. Formal notice was given when the mother had her counsel send correspondence to the father on July 6, 2022 seeking to increase support. Accordingly, the presumptive start date to change support is July 6, 2019.
Part Six – Should the court deviate from the presumptive start date?
[45] The next step in the Colucci framework is to determine if the court should deviate from the presumptive start date.
6.1 Reasons for delay
[46] 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.
[47] 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.
[48] 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.
[49] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. See: D.B.S., par.123.
[50] In Michel, the court, at paragraph 86, set out what might be understandable reasons for delay in a support recipient coming to court as follows:
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.
[51] The mother provided these understandable reasons for her delay in bringing her motion to increase child support:
a) The existing order required the father to provide her with annual financial disclosure. He did not comply with the order. This made it more difficult for her to assess if she should seek increased child support – particularly prior to 2016, when she became aware of the father’s enhanced lifestyle. She did not receive disclosure of the father’s actual income until after she issued her motion to change.
b) The existing order required the father to immediately notify her if he obtained employment. He did not do this.
c) The father told the mother that if she pursued an increase in child support she would receive less. He only sent her his 2014 income tax return which showed a lower income than the existing order was based upon. The mother relied on this to her detriment. The father’s behaviour was manipulative. He took advantage of her.
d) The mother presented as a fragile litigant. She was anxious during her testimony. She was easily flustered by questions and often took a long time to answer them, while she gathered herself. The mother said she is on medication for her anxiety. She testified how she was “crippled with anxiety”. She described how difficult the first court process in 2009 and 2010 had been for her. She was reluctant to reengage with the father. She described how she felt outmatched by him. He told her she would lose and support would be reduced if she took him to court. She believed him. She believed he was much more familiar than her with the legal system.
[52] That said, the extent of the mother’s delay in coming to court is only partially understandable. She testified she was aware by 2016, at the latest, that the father was living a lifestyle well in excess of someone earning an annual income of $19,604. On June 26, 2020, the mother wrote the following to the father:
If you are able to pay for a Lambo and live in a big house and think paying your daughter 169 is OK its not and you know it deep inside.
[53] The mother knew how to apply for legal aid assistance. She had done it before. She was on social assistance after 2013 and eligible to receive legal aid. She said she started but did not follow through with this process. She also blamed the pandemic for her delay. However, she waited almost another four years to come to court. Even with her fears, the mother should have come to court earlier.
[54] The court also considered that one of the likely reasons the mother did not come to court earlier was because she feared losing the benefit of additional payments the father was making for the child.
6.2 Blameworthy conduct
[55] Courts should apply an expansive definition of blameworthy conduct. See: D.B.S., par. 106.
[56] 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.
[57] 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.
[58] The father claims he did not act in a blameworthy manner because the parties agreed, both before and after the existing order was made, not to comply with it. He claimed the parties agreed to a shared parenting agreement, and he would pay the mother $169 each month and other expenses for the child when the mother asked for them. He claimed he did not believe it was necessary for him to provide the mother with his income tax returns and notices of assessment annually or advise her of his increases in employment.
[59] In support of his position, the father filed a document handwritten by him, dated November 9, 2009. It was signed by the mother and not witnessed. The agreement is for joint custody and shared parenting of the child. This document was signed long before the existing order was made and was superseded by it. The document has no legal effect. Further, at trial, it was evident the mother did not understand the legal meaning of shared parenting. She believed she had a shared parenting agreement with the father from June 2019 until March 2020, when the child was living primarily with him. During this time, the father traveled to Italy with the child. She did not start seeing the child regularly until December 2019.
[60] It makes little sense that the parties entered into an agreement prior to the existing order to disregard that order. The father’s evidence was not credible.
[61] The father submitted that the mother’s withdrawal of the enforcement of the support order from the Family Responsibility Office (FRO) on November 30, 2010 supports his position that they orally agreed to a different arrangement. This does not prove this. The court accepts the mother’s evidence that the father pressured her to withdraw enforcement of the existing order from FRO, as he told her she would receive her support more quickly by receiving the payments directly from him.
[62] There is no other evidence to support the father’s claim that the parties agreed to disregard the terms in the existing order.
[63] 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. It is informative that even though he received a letter from the mother’s counsel in July 2022 seeking financial disclosure and he retained a lawyer to negotiate this issue, he did not provide his financial disclosure to the mother until October 2023, after she issued her motion to change.
b) He breached the existing order by failing to advise the mother when he obtained employment.
c) He failed to advise the mother about his increases in annual income.
d) He failed to increase his child support payments in accordance with his annual income.
e) He deceived the mother into thinking his income had decreased and support would be reduced if she brought a motion to change.
f) The father has been paying $169 each month for child support despite significant increases in his income. His corporation spends about $2,000 monthly to lease a Lamborghini vehicle for him. He leases a Land Rover for over $700 each month. Yet, the father believes these expenses take priority to paying appropriate child support to the mother.
[64] The court finds that the father’s failure to disclose his increases in income to the mother was deliberate and done with an intent to avoid his child support obligations. The father felt justified doing this. He claimed he was spending much more money on the child than he would have been required to pay under the guidelines. There has been a considerable element of controlling behaviour by the father. He was prepared to spend money on the child but only if he determined how that money was spent. He did not want support to flow through the mother.
6.3 Circumstances of the child
[65] The father claims the circumstances of the child were not disadvantaged because of his failure to pay guidelines table support to the mother. He claimed he spent lavish amounts of money on her.
[66] The circumstances of the child were not disadvantaged when the child was with the father. However, the circumstances of the child were seriously disadvantaged when she lived with the mother, due to the father’s failure to pay adequate support. They lived on social assistance. The mother had to resort to food banks. The social media exchanges show that the mother sometimes pleaded with the father to pay for food and clothes for the child. The child had insecure housing. At one point, the mother had to go to a tribunal to prevent her eviction.
[67] The court accepts the mother’s evidence that the circumstances of the child were disadvantaged due to the father’s failure to pay adequate child support.
6.4 Hardship
[68] 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.
[69] 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.
[70] The father provided some evidence of hardship. He claimed he separated from his wife in January 2024. He will need to pay support for their five children, together with the child in this case. However, his most recent financial statement, sworn on August 9, 2024, indicates he has net worth of just over $100,000. This includes an interest in a two-million-dollar home, and a Land Rover he values at almost $98,000. The father also owns a 2011 Audi vehicle, and his company continues to lease the Lamborghini. The father values the Lamborghini at $200,000.
[71] Of interest is that the father swore a financial statement on April 22, 2024 (just 3.5 months before his most recent financial statement of August 9, 2024) deposing he had net worth of about $212,400. The difference is that in April 2024, he owned a Mercedes vehicle he valued at $200,000. He said he sold that car and bought the Land Rover with the sale proceeds. However, he did not account for where the balance went, despite being given the opportunity to do so by the court.[^5]
[72] The failure to make a retroactive support order will cause the mother hardship. She has required social assistance to make ends meet. The father acknowledged that she has asked him to buy food for her. He was also aware in 2022 that the mother was on the verge of being evicted.
6.5 Start date to change support
[73] The court repeats its comments made in Lewis v. Lynch, 2024 ONCJ 545, where it wrote at paragraphs 67 to 69:
[67] Courts at all court levels, including Colucci, are trying to send litigants the strong message that the failure to provide financial disclosure and to pay proper child support will not be tolerated. The Supreme Court of Canada in Michel observed how this has led to the feminization of poverty. This case proves that point.
[68] To change behaviour, courts must make orders that send clear and strong messages to support payors, such as the father, that such conduct will result in significant financial consequences for them. This will not dissuade all dishonest payors. However, increasing the risks for such conduct may dissuade many more of them.
[69] Here, the father made a calculated gamble that he would be able to control how his support was spent by not disclosing his income to the mother. He has lost that gamble.
[74] The court finds the result would be unfair if it did not deviate from the presumptive start date and it is fair to change support starting on January 1, 2015, based on the analysis set out in Parts 6.1 to 6.4 of this judgment above. The father’s annual income increased from $13,335 in 2014 to $55,671 in 2015. The father should have increased his support payments at that time, at the very latest. Instead, he chose to unilaterally control how the child was supported.
[75] The court strongly considered going back to January 1, 2011, for the retroactive support adjustment. However, it took into consideration that the father made additional payments for the child between 2011 to 2014 and that the mother should have come to court earlier. Further, the retroactive support adjustment from 2011 to 2014 would not be high, after taking into account support credits for the father’s additional payments for the child. Although the father earned $48,070 in 2011, his income went down to $34,526 in 2012, $35,105 in 2013 and $13,335 in 2014.
Part Seven – Did the parties ever have a shared parenting arrangement?
[76] The next step in the Colucci analysis is to calculate the support arrears. However, to do that, the court must first determine if the parties had a shared parenting arrangement at any time after January 1, 2015, as section 9 of the guidelines sets out a different support analysis if this is the case.
[77] Section 9 of the guidelines reads as follows:
Shared parenting time
9 If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared parenting time arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[78] The existing order is not a shared parenting arrangement.
[79] The father claimed the document dated November 9, 2009, is evidence the parties agreed to a shared parenting agreement. As discussed above, this document has no evidentiary value.
[80] The father claims the parties also orally agreed, after the existing order was made to a shared parenting agreement and followed it. He said he had the child with him each weekend and on holidays. He also claims the child was primarily with him from June 2019 until March 2020 (the mother agrees with this) and from June 2020 until December 2020 (the mother denies this).
[81] The mother denied there has ever been a shared parenting arrangement. She said she followed the parenting arrangements in the existing order, except for the time the child lived primarily with the father from June 2019 until March 2020.
[82] The mother testified that the father often did not exercise the parenting time allotted to him in the existing order. He often missed his weekends with the child. She said he did not regularly see the child from March 2020 until December 2021 and has not seen the child since December 2023.
[83] The mother’s evidence about the parenting arrangements was much more credible for the following reasons:
a) The father claimed in his trial affidavit that the parties still have a shared parenting arrangement for the child. However, the child has been estranged from the father. The father conceded, at trial, he has not seen the child since January 2024.
b) The father provided no evidence that the child lived primarily with him from June 2020 until December 2020, as claimed by him.
c) The father filed dozens of photographs of the child being with him and his family. The court notes that there was only one photograph between June 2020 and December 2020, only 3 photographs between March 2020 and December 2021 and none after 2022.
d) The mother provided a social media exchange between the parties, from May 17, 2016, where the father talks about having the child on alternate weekends.
e) The father deposed the child spends the entire summer each year with him. However, at trial, he described how in 2022 he went several weeks without seeing the child.
f) The father’s deception to the mother about his income adversely affects his credibility on all issues.
g) The mother was a credible witness. Although often flustered, she answered questions to the best of her ability. She was consistent about the living arrangements.
[84] The court finds the parties never had a shared parenting arrangement. The court also finds that the child primarily lived with the mother, not the father, from June 2020 until December 2020.
Part Eight – The father’s income since January 1, 2023
8.1 Positions of the parties
[85] The father’s annual income needs to be assessed to quantify the support arrears.
[86] The mother accepted the father’s stated income in his income tax returns for 2011 to 2022.
[87] The mother does not accept the father’s evidence that his annual income dropped to $34,000 starting on January 1, 2023, and asks the court to impute his annual income at $136,154, from that date for support purposes.
[88] The father deposed his business has been seriously impaired by changes in government immigration policies.
8.2 Legal principles for imputing income
[89] The court may consider pre-tax corporate income, together with line 15000 income over the previous 3 years to determine income if the court believes the line 15000 income of the payor does not adequately reflect income. This approach is also consistent with the fundamental object of the guidelines, which is to ensure fairness to both spouses, and to their children, in determining what amount of money is in fact reasonably available for the payment of support. See: Mason v. Mason, 2016 ONCA 725.
[90] Section 18 of the guidelines comes into play when the payor is the sole shareholder of a corporation. This section gives the court discretion to attribute some or all of the pre-tax income of a corporation to the shareholder, director or officer personally or, in the alternative, to attribute an amount less than or equal to the pre-tax corporate income that is commensurate with the services that the parent provides to the corporation. Section 18 reads as follows:
18 (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include
(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or
(b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.
Marginal note: Adjustment to corporation’s pre-tax income
(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.
[91] Whenever section 18 of the guidelines comes into play the onus is on the shareholder, director or officer to show that corporate monies, whether retained earnings or pre-tax corporate income, are not available for support purposes. See: Nesbitt v. Nesbitt, 2001 MBCA 113, [2001] M.J. No. 291 (C.A.), paras. 19 & 21; Hausmann v. Klukas, 2009 BCCA 32, [2009] B.C.J. No. 121 (C.A.) 32, paras 51-61. That is because the payor parent knows more about the business than the recipient and is therefore in the best position to explain why some or all of the company’s pre-tax income is not available for support. See: Elder v. Dirstein 2012 ONSC 2852.
[92] The court can also impute income to the father pursuant to section 19 of the guidelines.
[93] 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 41868 (ON CA), [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) A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O’Connor, 2006 13554 (ON SC), [2006] O.J. No. 1660, (Ont. Fam. Ct.). This principle also applies where the person’s employment income is derived from a corporation that he or she fully controls. See: MacKenzie v. Flynn, 2010 ONCJ 184; Yocheva v. Hristov, 2019 ONSC 1007; Poulin v. Poulin, 2017 ONSC 64.
e) The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade (2002) 2002 2806 (ON SC), 31 R.F.L. 5th 88 (SCJ). This includes the obligation to present information in a user-friendly fashion. A recipient should not have to incur expense to understand it. See: Reyes v. Rollo, 2001 28260 (SCJ).
f) 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.
g) 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.
h) 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.
i) 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, 2006 26573 (ONCA).
j) 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.
8.3 Analysis
[94] The father is the sole owner of his corporation. He controls the income his corporation pays him for tax purposes. This is not a problem, if the court finds this income is a reliable indicator of what the father is actually earning. However, the court finds that the father’s evidence about his income since 2023 is neither reliable nor credible for the following reasons:
a) The father deceived the mother about his financial circumstances for many years to avoid paying her child support.
b) The father misrepresented the child’s living arrangements to the court to try and obtain a financial advantage.
c) The court does not find it coincidental that the father reported a drastic drop in his annual income soon after the mother obtained counsel to increase support – just as it did not find it coincidental that the father sent only one income tax return to the mother, showing his lowest income.
d) The court also does not find it coincidental that in the midst of this litigation, the father deposed his net worth was reduced by over $100,000 in 3.5 months between April and August 2024.
e) The father is determined to avoid meeting his child support obligations to the mother.
f) The father continues to drive luxury vehicles and lead a high lifestyle. The mother asked him for disclosure for how he qualified for financing to buy his 2024 Land Rover. The father did not provide this. At trial, he claimed only his wife was asked for credit information. However, the vehicle is in his name. The court draws an adverse inference against him, as the father likely knew his credit application contained a more accurate representation of his income. Again, the father did not provide disclosure that might hurt his case.
g) The father declared annual income of $78,000 in his financial statement sworn on December 27, 2023. The father would have known his 2023 income this late in 2023. This declaration is likely a more accurate indicator of his 2023 income.
h) The father also declared his 2023 income was $78,000 in his April 22, 2024, financial statement.
i) In his affidavit sworn on December 14, 2023, the father deposed he earns approximately $80,000 to $100,000 annually.
j) The father provided no proof of his 2024 income. He provided no general ledgers from his company, despite being requested to do so by the mother.
k) The father provided a copy of his 2023 corporate tax return. This contained the corporate Income Statement. The father provided no supporting documentation for the income and expenses set out in the Income Statement. He did not provide corporate bank statements as requested by the mother.
l) The court also has the following concerns about the reliability of the Income Statement:
i) The corporation’s revenue increased from $167,128 in 2022 to $214,273 in 2023. Yet the father claims his income went down from $78,780 in 2022 to $34,000 in 2023.
ii) The corporation deducted costs of sales/direct wages of $65,254 in 2023. The corporation did not make deductions for these categories prior to 2023. The father could not explain the deduction and said his accountant would know. He did not call his accountant as a witness.
iii) The corporation deducted subcontractor expenses of $47,065 in 2023. The corporation did not make deductions for subcontractor expenses before 2023. The father said he hired two or three people, on behalf of the corporation, to generate business. The father provided no evidence of who the corporation made these payments to, whether these were arms-length payments or what revenue these subcontractors generated. The court views these new expenses with skepticism.
[95] A review of the 2023 corporate tax return for the father’s business indicates that it aggressively wrote off expenses. It wrote off expenses for the Lamborghini. The father deposed this was a necessary marketing expense to keep up his image as a successful consultant. The court disagrees. The evidence informs the court that the father enjoys possessing and driving luxury vehicles and presenting himself as an affluent person. This was a theme in this case. The father also owned a luxury Mercedes until a few months ago and exchanged it for the Land Rover. When asked if he could obtain a less expensive vehicle, the father insisted he could not obtain a suitable replacement for the Land Rover for less than $80,000 to $85,000. He has been driving these luxury vehicles while the mother remains in poverty, in large part because he does not pay her the proper amount of child support.
[96] The corporation also wrote off $12,000 for rent in his 2023 corporate tax return, although the father operates his business out of his home.[^6] He would be incurring the same expenses for his home even if he did not have a business. While the deduction might be acceptable for income tax purposes, this is available income to assess the father’s income for support purposes.
[97] The court finds that the 2023 corporate and personal tax returns provided by the father do not accurately reflect his actual income for that year.
[98] The court finds that the father is living a lifestyle far in excess of someone who is earning $34,000 annually. In addition to driving luxury vehicles and owning part of his home, he travels internationally, and according to the receipts he filed, often eats out at restaurants.
[99] The court finds that the father has been earning annual income of at least $78,000 since January 1, 2023. The court, in making this finding, offset the possibility that the father might be earning slightly less income due to government immigration policies against his corporation’s aggressive deduction of expenses, some being personal expenses that need to be added back to his income to achieve a fair result.
[100] The analysis does not stop there. It is appropriate in these circumstances to gross-up the payor’s income, as the payor is declaring and paying tax on substantially less income than the payor is actually earning. This 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 22639 (ON SC), [2000] O.J. No. 2855 (Ont. S.C.); Prillo v. Homer, 2023 ONCJ 8.
[101] A software analysis shows that the father’s grossed-up annual income is $95,247. This is the income that will be assessed to the father for support purposes starting on January 1, 2023.[^7]
Part Nine – Should the father’s child support obligation be reduced starting January 1, 2023, based on undue hardship?
9.1 Positions of the parties
[102] This issue also needs to be determined prior to quantifying arrears.
[103] The father claims he cannot afford to pay the guidelines table amount for the child due to his support obligations to his other five children. He claims that these children would be unfairly disadvantaged if the guidelines table amount was ordered.
[104] The mother submits the father has not met the test of undue hardship, pursuant to section 10 of the guidelines.
9.2 Legal considerations for undue hardship claims
[105] Section 1 of the guidelines sets out the objectives of the guidelines as follows:
(a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
(b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;
(c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and
(d) to ensure consistent treatment of spouses and children who are in similar circumstances.
[106] Undue hardship claims are governed by section 10 of the guidelines which reads as follows:
Undue hardship
- (1) On the application of either spouse or an mother under section 33 of the Act, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the parent or spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.
Circumstances that may cause undue hardship
(2) Circumstances that may cause a parent, spouse or child to suffer undue hardship include,
(a) the parent or spouse has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living;
(b) the parent or spouse has unusually high expenses in relation to exercising access to a child;
(c) the parent or spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is,
(i) under the age of majority, or
ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life;
(e) the parent has a legal duty to support a child, other than the child who is the subject of this application, who is under the age of majority or who is enrolled in a full time course of education;
(f) the parent or spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.
Standards of living must be considered
(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the parent or spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other parent or spouse.
Standards of living test
(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.
Reasonable time
(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the order for child support, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
Reasons
(6) Where the court makes an order for the support of a child in a different amount under this section, it must record its reasons for doing so.
[107] It is very difficult to make out a successful undue hardship claim under section 10 of the guidelines. There are three parts to the test:
The person making this claim must show that there are circumstances that could create undue hardship.
If this is the case, the person making the claim must show that his or her standard of living is lower than that of the responding party’s.
If the first two parts of the test are made out, the court has the discretion to make a support order different than the table amount, based on the means, needs and circumstances of the parties.
See: Matthews v. Matthews 2001 28118 (ON SC), [2001] O.J. No. 876 (SCJ).
[108] The father must prove more than hardship. He must show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient. See: Hanmore v. Hanmore 2000 ABCA 57.
[109] The father has the onus of providing adequate supporting documentation to prove his undue hardship claim. See: Van Gool v. Van Gool, 1998 5650 (B.C.C.A.); Al-Hadad v. Al-Harash, 2023 ONCJ 463.
9.3 Analysis
[110] While the father was able to demonstrate some hardship if the guidelines table amount was ordered, he did not meet the stringent undue hardship test set out in the jurisprudence.
[111] The father did not prove his hardship was exceptional, excessive or disproportionate. He has sufficient net worth and income to meet his support obligations.
[112] The father provided no evidence his standard of living was lower than the mother’s. He still has significant net worth and owns or leases three vehicles. The mother has nominal net worth. She is also supporting three children on social assistance.
[113] Lastly, due to his blameworthy conduct detailed above, the court would not exercise its discretion to make an undue hardship finding in the father’s favour.
[114] The father’s claim for undue hardship is dismissed.
Part Ten – Calculation of arrears
[115] The final step in the Colucci framework is to quantify the proper amount of guidelines table support for each year from the start date of retroactivity.
[116] The father’s guidelines table child support obligations for the child from 2015 are as follows:[^8]
| Year | Income | Table Calculation | Annual Amount Payable |
|---|---|---|---|
| 2015 | $55,671 | $516 each month x 12 months | $6,192 |
| 2016 | $48,460 | $448 each month x 12 months | $5,376 |
| 2017 | $83,022 | $743 each month x 11 months $774 x 1 month |
$8,173 $774 |
| 2018 | $85,200 | $794 each month x 12 months | $9,528 |
| 2019 | $85, 231 | $794 x 5 months | $3,970 |
| 2020 | $90,137 | $835 x 9 months | $7,515 |
| 2021 | $122,159 | $1,085 x 12 months | $13,020 |
| 2022 | $78,780 | $734 x 12 months | $8,808 |
| 2023 | $95,247 | $873 x 12 months | $10,476 |
| 2024 | $95,247 | $873 x 9 months | $7,857 |
Total guidelines table amount accrued = $81,659
[117] The parties agree that the father paid the mother $169 each month for child support until the end of September 2024. The father will be credited with support paid of $19,773 ($169 x 117 months). This leaves a balance owing of $61,886.
[118] The support owing to the assignee for the period of assignment, being January 1, 2015, until January 31, 2017, before accounting for support credits is $8,086, calculated as follows:
2015 $6,192
2016 $5,376
2017 $743 (one month)
Total: $12,311
Less: $4,225 (25 months at $169 each month)
Balance: $8,086
[119] The balance of $53,800 ($61,886 - $8,086) is owed to the mother.
Part Eleven – Section 7 expenses
[120] The father claimed $3,117 for the mother’s share of section 7 expenses since 2017. This included expenses for eyeglasses, art supplies, a laptop, laptop repair, an iPhone payment of cellphone bills and school uniforms for the child.
[121] The existing order sets out the mechanism for section 7 expenses as follows:
a) The net expenses of childcare will be shared in proportion to income.
b) The parents will share in proportion to income any medical expenses for the child not covered by insurance.
c) The parties will consult with each other regarding extra-curricular activities for the child. Neither party shall enroll the child in activities without the consent of the other party if this would require additional monies from the other party.
d) By June 1st each year the recipient shall provide current information about the status of the section 7 expenses, including receipts or invoices.
[122] The court will not order the mother to contribute to the section 7 expenses claimed by the father because he failed to comply with the mechanism for payment of these expenses set out in the existing order. The father did not:
i) Provide evidence that he consulted with the mother about the expenses before incurring them, as required by the existing order.
ii) Provide the mother with the receipts for the claimed section 7 expenses on an annual basis, as required by the existing order.
iii) Provide the mother with copies of his annual income tax returns and notices of assessment, as required by the existing order.
iv) Make his request for a contribution to these expenses in a timely manner. He did not raise the issue until he filed his affidavit accompanying his response to motion to change.
[123] Further, the mother was on social assistance during this time. Her contribution to these expenses would have been nominal.
[124] However, the court will consider the father’s payment of these expenses in exercising its discretion over what support credits should be given to him.
Part Twelve – Support credits
12.1 Positions of the parties
[125] The father asks that any retroactive arrears be eliminated because of additional payments he has made on behalf of the child. He filed extensive documentation setting out payments he claimed he made for her.
[126] The mother acknowledges the father once paid for glasses for the child and that he also purchased school uniforms for her. The mother agrees to credit the father for this. She says, at times the father would pay for clothes and provide her with food at her request. She estimated this came to about $100 to $150 each year.
12.2 Legal considerations
[127] The court has the discretion to provide some credit to the father for payments made on behalf of the child. For instance, courts will sometimes credit payors if they buy diapers, clothing and other supplies for their children that assists the support recipient to support them. These do not have to be section 7 expenses. See: Hunchak v. Anton, 2026 SKCA 44; Thomas v. Charles, 2024 ONCJ 87; Swiderski v. Dussault, 2009 BCCA 461; Lewis v. Lynch, supra.
[128] Courts will be more reluctant to exercise their discretion in a payor’s favour when they have engaged in blameworthy behaviour. In Lewis v. Lynch, supra, this court wrote at paragraph 71:
This is not a case where the court should exercise its discretion in favour of the father. The father’s conduct was dishonest and highly manipulative. The mother needed support to pay for the basic necessities for the children. Instead, he kept the mother impoverished while he was able to play the role of the “fun parent”, taking the children to expensive activities the mother could not afford.
[129] In Wensel v. Rhodes, 2012 BCCA 245, the Court of Appeal declined to give credit for direct payments made by a payor for the following reasons:
a) The custodial parent should be the one to make the decisions about the child’s expenditures.
b) A private unilateral scheme operated by the payor can be a method of control that undermines the authority of the custodial parent.
c) The payor is in sole possession of the information about direct payments. Unless the payor is forthcoming about such payments in a timely way, the payee is at the mercy of the payor’s record keeping.
d) The payor may choose to make additional payments for recreational or other activities which present them in a more positive light to the children and others, whereas the custodial parent may find themselves funding more mundane living expenses.
[130] The creation of unilateral support regimes has been criticized by several courts. See for example: Greene v. Greene (2010), 92 R.F.L. (6th) 52 (BCCA); Cameron v. Cameron, 2023 ABKB 52.
12.3 Analysis
[131] The father presented well over one thousand pages of receipts and credit card statements for expenses he said he paid for the child since 2011. He seeks credit for these payments. The father organized the receipts by year. However, that was the extent of his organization of these documents. He did not identify in his materials:
a) The expenses he paid for the child while exercising his parenting time.
b) The expenses he paid for the child at the request of the mother.
c) The expenses he paid for the child that assisted the mother in supporting the child.
d) The expenses he paid for the child after consultation with the mother and with her consent.
[132] This information was essential for the court to determine how it should exercise its discretion about the credits. The father essentially did a paper dump on the mother.
[133] It is also an unrealistic expectation to have a trial judge review this volume of receipts without this organization. The court will not conduct a forensic examination of each receipt filed by the father, nor will it conduct a precise calculation of the credits he will be awarded.
[134] The father will receive some credits for expenses he paid at the request of the mother, such as food, clothes, school supplies, art supplies and school uniforms for the child. The court will also give the father some credit for medical expenses he paid for the child, such as eyeglasses (2x) and one dental bill. The father is paying a cellphone bill for the child and pays for Apple and Netflix accounts for her. The court will give the father some credit for these expenses since the child benefits from this in both homes.
[135] The court will also give the father some credits for the time the child was in his primary care from June 2019 until March 2020. He did not receive any child support during this time from the mother although it is likely that little would have been ordered as the mother was on social assistance and below the income threshold to pay guidelines table support. She was a single mother raising three other children at that time. She had been out of the workforce since 2013 and suffered from anxiety issues. The court would not have imputed income to her. However, the court recognizes the father incurred additional expenses for the child during this time.
[136] A review of the father’s documentation shows that most of the expenses he paid for the child were for the child’s benefit while the child was in his care. These include many expenses for meals at restaurants, travel with his family, including flight and hotel and recreational activities. He claimed considerable furniture expenses for the child and considerable Uber expenses to transport her for visits with him. He claimed he bought a computer for the child that the mother claims she has never seen. The father paid these expenses while keeping the child in poverty conditions in the mother’s home by not paying appropriate support. The father will not receive credit for any of those payments.
[137] The mother also pointed out how the father, at times, exaggerated his contributions for the child. She deposed in her trial affidavit:[^9]
a) In 2018, he claimed a restaurant expense of $383 for the child. The receipt shows this was for eleven people.
b) In 2018, he claimed a restaurant expense of $408 for the child.
c) In June 2023, he submitted a receipt for a crib mat and in July 2023 he submitted a receipt for baby toys.
d) In January 2024 he said he made a Play Station transaction for the child. However, the receipt says it was for another one of his children. He was not seeing the child at this time.
e) In 2014, the father claimed multiple expenses for Starbucks Coffee and Grande Americanos. The child was 7 years old at the time.
[138] The father has made far fewer additional payments for the child since 2023.
[139] The court will generally exercise its discretion concerning credits in the mother’s favour, due to the father’s blameworthy conduct. She receives the benefit of any doubt in this analysis.
[140] The court will credit the father with additional support paid of $10,000 since 2015. The credit will be $2,000 between 2015 and January 31, 2017 (the period of assignment of support) and $8,000 after February 1, 2017.[^10]
[141] The father owes total support of $51,886 ($61,886 - $10,000). The amount of $45,800 ($53,800 - $8,000) is owed to the mother. The amount of $6,086 ($8,086 - $2,000) is owed to the City of Toronto.
[142] The court will not make a payment order for the arrears. The father will need to negotiate payment with FRO. Based on his support history, there is a significant risk that he will try to avoid payment and arrange his affairs to frustrate collection. Presently, he has sufficient net worth to satisfy the support arrears. The Director should promptly and aggressively enforce this order to ensure the mother and the assignee receive the support they are entitled to.
Part Thirteen – Conclusion
[143] A final order shall go changing the existing order on the following terms:
a) The father’s support arrears as of today are fixed at $51,886, as calculated in this decision. This is allocated as follows:
i) $45,800 is owed to the mother.
ii) $6,086 is owed to the City of Toronto.
b) The arrears are due and payable forthwith.
c) The father shall pay the mother child support in the amount of $873 each month, starting on October 1, 2024. This is the guidelines table amount for one child, based on the father’s imputed annual income of $95,241.
d) The balance of the existing order remains in effect.
e) The father’s claims are dismissed.
f) A support deduction order shall issue.
[144] The court wants to be clear with the father that he must comply with the court order. This means he must provide annual financial disclosure and follow the mechanism set out in the existing order regarding section 7 expenses. He should not expect the court to give him any credits in the future for additional payments made on behalf of the child that are not in accordance with this order.
[145] If either party or the assignee believes there is a mathematical or software inputting error in these calculations they shall serve and file a Form 14B by September 16, 2024 setting out the error. The other party and the assignee will then have until September 23, 2024 to respond.
[146] If either party seeks costs, they shall serve and file written costs submissions by October 2, 2024. The other party will then have until October 16, 2024 to serve and file their written response (not to make their own submissions). The submissions shall be no more than 3 pages, not including any bill of costs or offer to settle.
[147] Court staff are to send a copy of this decision to the FRO Legal Department, attention Diane Gillies, to facilitate enforcement of this order.
[148] The court thanks counsel and the agent for the assignee for their professionalism in presenting this case.
Released: September 9, 2024
Justice Stanley B. Sherr
[^1]: As will be set out in this decision, there was also no merit to the father’s claim for overpayment of support. [^2]: 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:
- Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support.
- The conduct of the payor parent.
- The circumstances of the child.
- The hardship that the retroactive award may entail. [^3]: See: Michel v. Graydon, 2020 SCC 25. [^4]: The father acknowledged at trial he sent this message to the mother. [^5]: The father claimed he sold the Mercedes for $140,000. He provided no evidence of this. He provided no evidence of why it was sold at $60,000 less than his recent valuation of it. Even if the court accepted this evidence, the father did not account for where the remaining $40,000 went. [^6]: The father testified that he pays about $3,000 for a virtual office. The court accepts this is a proper deduction for the support analysis. [^7]: The software analysis is attached to this decision. [^8]: The court is excluding the period from June 2019 (7 months) until March 2020 (3 months) when the parties agree the child was living with the father. The guidelines table amounts changed starting on December 1, 2017, and this is reflected in this calculation. [^9]: The father did not dispute this evidence at trial. [^10]: This allocation of credits is made to clarify the support owing to the assignee and the support owing to the mother.