K.U.G. v. S.G.G., 2024 ONCJ 528

Court File and Parties

DATE: October 21, 2024 COURT FILE NO.: D44858/24 ONTARIO COURT OF JUSTICE

B E T W E E N:

K.U.G. JUSTIN PERSAUD, for the APPLICANT APPLICANT

- and –

S.G.G. ACTING IN PERSON RESPONDENT

HEARD: OCTOBER 18, 2024

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] This trial was about the respondent’s (the father’s) child support obligations for the parties’ 18-year-old son (N).

[2] The applicant (the mother) seeks child support retroactive to March 1, 2019 in accordance with the father’s annual income and the Child Support Guidelines (the guidelines). She also seeks an order requiring the father to pay his proportionate share of N’s post-secondary school expenses, pursuant to section 7 of the guidelines (section 7 expenses).

[3] The father asks the court to start child support on January 1, 2023 in accordance with his annual income and the guidelines. He agrees to contribute a proportionate share of N’s section 7 expenses. He also agrees to maintain N on any extended health plan he has available to him through his place of employment.

[4] The father did not file an Answer/Claim and was found in default on July 17, 2024. The court set a date for an uncontested trial and required the mother to serve the father with her Form 23C affidavit for the trial.

[5] The father attended on the return date of September 3, 2024. After hearing submissions, the court adjourned the trial and gave the father limited rights of participation at the trial. It permitted him to:

a) Serve and file an affidavit setting out his evidence. b) Provide proof of support paid since March 1, 2019. c) File a financial statement, together with his last 3 income tax returns and notices of assessment and his last three pay stubs. d) Make submissions on the evidence filed.

[6] The mother was given the option of cross-examining the father.

[7] The father did not comply with the court order and filed nothing prior to the trial. At trial, the father brought his most recent pay stubs, and his T4 statements for 2018, 2019 and 2023. The court permitted him to file these documents.

[8] The parties both gave additional oral evidence at the trial. The father was cross-examined. Both parties made submissions.

[9] The issues for the court to determine are as follows:

a) What is the presumptive start date for child support? In determining this date, the court must determine the dates of formal notice and effective notice of the mother’s claim for support. b) Should the court depart from the presumptive start date, and if so, when should support start? c) How much child support should the father pay the mother for each year he is required to pay support? d) What credits should the father receive for child support paid? e) How should any arrears of child support be paid? f) What amount, if any, should the father pay for N’s future section 7 expenses?

Part Two – Background facts

[10] The mother is 48 years old. The father is 47 years old.

[11] The parties married in July 2004. They separated on June 2, 2017. They had the one child together.

[12] The parties divorced on July 17, 2018.

[13] N has primarily lived with the mother since March 2019.

[14] N has been estranged from the father since early in 2023.

[15] The mother works as an assistant librarian. She earns about $62,000 annually.

[16] The father works as an Audio/Visual designer. He has remarried.

[17] The father acknowledged he stopped paying any child support to the mother in December 2022.

[18] The mother issued this application on February 23, 2024.

[19] The father was served with the application on March 1, 2024.

[20] On April 11, 2024, at First Appearance Court, the mother consented to an order extending the time for the father to file his responding material to May 13, 2024. The father did not file any material.

[21] On May 28, 2024, at First Appearance Court, the mother consented to a second extension for the father to file his responding materials to June 11, 2024. Again, the father did not file any material.

[22] On July 17, 2024, the father sent the mother a text asking her to stop the court case. He said if she did not do this, he would have no choice but to quit his job and leave the country.

[23] The father did not attend at court on July 17, 2024. The uncontested trial date was set. The court made a temporary order that the father pay child support to the mother of $793 each month, based on an annual income of $85,000. [1] This was subject to adjustment both as to the amount and the start date.

[24] The father has paid no support since the July 17, 2024 order was made.

Part Three – Start date for child support

3.1 Legal considerations

[25] The mother served her application on the father on March 1, 2024. Support since that date is prospective support and is presumptively payable. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.). The support claimed by the mother before that date requires a retroactive support analysis.

[26] The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act. This clause reads as follows:

Powers of court

(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;

[27] In Colucci v. Colucci, 2021 SCC 24 (Colucci), the court set out the framework that should be applied for applications to retroactively 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 continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e. Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[28] This framework in Colucci addressed a request to retroactively increase the support contained in an order or an agreement. Courts have found that this framework should also be applied, with necessary modifications, for an original request for retroactive support.

[29] In an original application for retroactive support, there will be no need to meet the threshold requirement of establishing a material change in circumstances, as required in Colucci. The first step will be to determine the presumptive date of retroactivity as described in Colucci. The second step will be to determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors [2] will guide the exercise of that discretion, as described in Michel v. Graydon, 2020 SCC 25. The third step will be to quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines. See: L.S. v. M.A.F., 2021 ONCJ 554; M.A. v. M.E., 2021 ONCJ 555; A.E. v. A.E., 2021 ONSC 8189; M.K. v. K.M., 2022 ONCJ 424; T.B. v. O.T., 2023 ONCJ 35; V.S.B. v. B.L.O., 2022 ONCJ 506; Mohamoud v. Farah, 2023 ONCJ 103.

[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.

3.2 What is the presumptive start date to change support?

[34] The first step in the Colucci framework is to determine the presumptive start date for support to be changed. To determine this, the court must look at when effective notice and formal notice was given by the mother to the father.

[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; Crightney v. Garcia, 2024 ONCJ 431.

[37] The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness). See: Michel, par. 36.

[38] The mother deposed she sought child support from the father starting on March 1, 2019. The court accepts her evidence. This is the date of effective notice.

[39] The mother retained counsel who sent a letter to the father on August 29, 2019, seeking to negotiate an agreement on child support. The court finds this was the date of formal notice.

[40] The presumptive start date is March 1, 2019, being the date of effective notice. [3]

3.3 Should the court depart from the presumptive start date?

[41] The second step in the Colucci framework is to determine if the court should depart from the presumptive start date.

3.3.1 Reasons for delay

[42] 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.

[43] 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.

[44] 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.

[45] 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.

[46] The mother provided understandable reasons for her delay in bringing her application for child support, including:

a) N has struggled with mental health issues. He has been hospitalized several times as a result. The mother has been the parent attending to N’s emotional needs on her own. N has received little emotional or financial assistance from the father. The mother was focused on N’s needs, not court action. b) The father failed to notify her of his increases in his income. She did not have the necessary information to properly assess if she should have come to court earlier. c) The mother had limited financial means to engage in litigation with the father. She has struggled to support N and herself. She attempted to negotiate a support agreement with the father in 2019 and he ignored her. d) The mother was reluctant to engage in litigation with the father. She knew he would react poorly, as he has in this case, by ignoring court orders, extending the process, making it more costly, refusing to pay her anything and threatening to quit his job and leave the country.

3.3.2 Blameworthy conduct

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

[48] 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.

[49] 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.

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

a) He failed to advise the mother of increases in his annual income. b) He failed to increase his child support payments in accordance with his annual income. He knew or ought to have known he should have done this. c) He stopped paying child support altogether in December 2022. d) He has breached the court order to pay temporary child support to the mother. e) He has breached court orders for disclosure.

3.3.3 Circumstances of the child

[51] 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.

[52] N’s circumstances have been disadvantaged due to the father’s failure to pay adequate child support. The mother has been unable to afford to move with N out of their basement apartment. She has been unable to afford better resources to address N’s mental health. She has not been able to take him on vacations. She has had to borrow from friends and family to make ends meet.

3.3.4 Hardship

[53] 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.

[54] 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.

[55] The father provided no evidence that a retroactive support order will cause him hardship. Any hardship can be addressed by making a payment order for arrears.

[56] The father acknowledged he spends $400 each month on his cellphone and sets aside money for vacations. He said he will have about $22,000 in his RRSP by the end of this year. He rents a home with his wife.

[57] The mother will suffer hardship if a retroactive support order is not made. She has incurred debt to support herself and N.

[58] The court will not depart from the presumptive start date. [4]

[59] Support will start on March 1, 2019, as requested by the mother.

3.4 Quantification of support and arrears

[60] The third and final step in the Colucci analysis is to quantify the proper amount of support for each year since the start date of retroactivity, calculated in accordance with the guidelines.

[61] The father provided T4 statements for 2018 and 2019. He provided a pay stub, showing year-to-date income up to December 27, 2023, of $142,342 and a pay stub, showing year-to-date income as of September 15, 2024. The mother was content to use the father’s 2019 T4, his 2023 pay stub and the projected annual income from his 2024 pay stub to assess his income for 2019, 2023 and 2024.

[62] The father’s year-to-date income as of September 27, 2024, is $113,871. This projects to an annual income of $151,828. [5]

[63] The father testified he earned about $89,000 in 2020 and 2021. The mother agreed to use those amounts to assess support for those years.

[64] The father testified he started his current job in September 2022. He said he was paid at the rate of $141,000 annually. The mother is content to apply the annual income of $89,000, from the father’s previous job, until September 2022 and $141,000 after. This results in a 2022 income for the father of $106,333. [6] An adverse inference is drawn against the father due to his failure to provide documentation showing his actual income for 2022.

[65] The mother took a reasonable approach in calculating the father’s income. He did not object to it.

[66] N is now 18 years old. The court must consider if the guidelines approach (table amount plus section 7 expenses) is appropriate for him. [7] The court finds it is. N has struggled in school due to his mental health. He lives at home and is fully dependent on his mother. He attended summer school and will complete his high school credits this fall. He plans to attend college in Toronto starting in March 2024 and take a course in marketing and advertising. He will continue to live at home and commute each day to school. This is a reasonable education path for him.

[67] The father is now earning over $150,000 annually. Section 4 of the guidelines applies. This section permits the court to depart from the guidelines if it finds the result inappropriate. There is no reason to depart from the guidelines approach in this case. The father’s income is just over the $150,000 threshold. He has not met his support obligations to N and N needs support now.

[68] Child support has accumulated since March 1, 2019, based on the father’s annual income as follows: [8]

2019 - $85,900 - $800 x 9 months = $7,200 2020 - $89,000 - $826 x 12 months = $9,912 2021 - $89,000 - $826 x 12 months = $9,912 2022 - $106,333 - $960 x 12 months = $11,520 2023 - $142,352 - $1,243 x 12 months = $14,916 2024 - $151,828 - $1,312 x 10 months = $13,120 Total: $66,580

[69] The mother agreed to credit the father with $13,050 for support paid since March 1, 2019. This is an amount the father claimed to have paid her in a document he sent to her prior to the trial. She did not think he paid that much but did not feel it was worth fighting over. The father did not provide any evidence of additional support paid. He will be credited with this amount, leaving a support balance owing of $53,530 ($66,580 - $13,050).

Part Four – Section 7 expenses

[70] The parties were in general agreement about what the father should pay towards N’s post-secondary section 7 expenses.

[71] The parties agreed that N’s post-secondary expenses will consist of tuition, books and TTC pass (the post-secondary expenses).

[72] The parties agreed that a RESP for N, of about $14,000, will first be applied to N’s post-secondary expenses before either of them makes a contribution.

[73] Once the RESP is exhausted, the parties will deduct one-third of the post-secondary expenses before paying their proportionate shares of the remainder each year. [9] The father’s proportionate share of these costs after this deduction will be 71% and the mother’s share will be 29%.

[74] The father agreed to cover the child on his extended health plan available through his place of employment. This will be ordered.

Part Five – Payment of arrears

[75] To reduce any hardship to the father, he will be permitted to pay the arrears as follows:

a) $10,000 on or before December 31, 2024 b) $10,000 on or before June 30, 2025 c) $10,000 on or before December 31, 2025 d) $10,000 on or before June 30, 2026 e) The balance on or before December 31, 2026

[76] If the father defaults on any of these payments, or he is more than 30 days late in paying his ongoing support payments, the full amount then owing shall immediately become due and payable.

Part Six – Conclusion

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

a) The father owes the mother $53,530 for child support, as calculated in this decision. b) The father may pay these arrears as follows: i) $10,000 on or before December 31, 2024 ii) $10,000 on or before June 30, 2025 iii) $10,000 on or before December 31, 2025 iv) $10,000 on or before June 30, 2026 v) The balance on or before December 31, 2026 c) If the father defaults on any of these payments, or he is more than 30 days late in paying his ongoing support payments, the full amount then owing shall immediately become due and payable. d) The father shall pay the mother ongoing child support of $1,312 each month, starting on November 1, 2024. This is the guidelines table amount for one child, based on the father’s annual income of $151,828. e) N’s section 7 post-secondary expenses, consisting of tuition, books and TTC pass, will be paid as follows: i) The parties will first apply the RESP for N towards these costs. ii) Once the RESP is exhausted, the father shall pay 71% and the mother shall pay 29% of the balance of N’s post-secondary expenses, after first deducting one-third of the total expenses. f) The mother shall annually provide the father with proof that N is attending post-secondary school and with receipts of his post-secondary expenses. g) On consent, the father shall maintain N on any extended medical, dental or health plan he has available to him through his place of employment, for so long as N is eligible to be covered. h) The parties shall exchange their income tax returns and notices of assessment by June 30th each year. i) Nothing in this order precludes the Family Responsibility Office from collecting arrears from any government source (such as income tax or HST returns), inheritances, or lottery or prize winnings. j) A support deduction order will issue.

[78] The mother is entitled to her costs of this application. She asked to make written costs submissions. She is to serve and file these submissions by October 31, 2024. The father will then have until November 14, 2024, to make a written response. The costs submissions should not exceed three pages, not including any offer to settle or bill of costs. The submissions should be delivered to the trial coordinator’s office on the second floor of the courthouse.

Released: October 21, 2024

Justice Stanley B. Sherr

[1] This was based on the father’s last known annual income in 2018. [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:

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. [3] Colucci sets out that the presumptive start date cannot be more than three years before the date of formal notice. The date of formal notice was August 29, 2019, so the three-year limit does not apply. [4] The court emphasizes that even if it had found the date of formal notice was the date when the father was served with the application (March 1, 2024), it would have departed from the presumptive start date, being March 1, 2021 (since effective notice cannot be more than three years before the date of formal notice) back to the start date requested by the mother, due to the reasons set out in this Part. [5] $113,871 divided by 9 months x 12. [6] $89,000 divided by 12 x 8 months = $59,333 plus $141,000 divided by 12 x 4 months = $47,000. [7] See subsection 3 (2) of the guidelines. [8] The court has used the guidelines table amounts for one child at the father’s annual income for each year. [9] The deduction reflects what the parties feel N should contribute to his post-secondary expenses.