Wilson v. Johnson, 2024 ONCJ 6

CITATION: Wilson v. Johnson, 2024 ONCJ 6

DATE: 2024 01 05

COURT FILE No.: Toronto D 42856/22

ONTARIO COURT OF JUSTICE

BETWEEN:

LOUISE WILSON

Applicant

and –

RYAN JOHNSON

Respondent

Before Justice Carole Curtis

Heard on: 11-12 July 2023

Reasons for Judgment released on 05 January 2024

Glen Schwartz . . . . . . . . . .. . . . . . .for the Applicant Mother

the Respondent Father appeared in person and unrepresented

CURTIS, J.

Over-view
Background
Litigation history
Claims at the Trial
The Law on Child Support
Retroactive Child Support Orders

a. The Start Date for Support

i. Legal considerations

ii. The Significance of Disclosure or Non-Disclosure

Analysis re Disclosure

iii. What is the Presumptive Start Date for Support

The Colucci Framework
Analysis re the Presumptive Start Date for Support

iv. Should the Court Deviate from the Presumptive Start Date for Support?

Analysis about Whether the Court Should Deviate from the Presumptive Start Date for Support?

v. The Deviation Factors, as Applied in Michel v Graydon

Delay

a. Analysis regarding Delay

Blameworthy Conduct

a. Analysis regarding Blameworthy Conduct

Circumstances of the Child

a. Analysis regarding the Circumstances of the Children and the Mother

Hardship

a. Analysis re Hardship

b. Summary regarding the Start Date of Support

Imputing Income

a. The Law regarding Imputing Income

b. Imputing Income: Adverse Inference for Failing to Provide Disclosure

c. Income determination: Evidentiary basis

d. Analysis regarding Imputing Income

i. Father’s Income

e. What Amount should the Father be Given Credit for Paying?

Orders
Costs

Overview

This is the decision in the hearing of the application by the mother. At trial, the only outstanding issue was child support.
The issues at the hearing were these:

(a) what start date should be used for child support?

(i) What is the presumptive start date for child support?

(ii) Should the court deviate from the presumptive start date where the result would otherwise be unfair?

(b) what is the father’s income for child support purposes, for the years he is required to pay child support?

(c) What is the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.

(d) If retroactive support is ordered, what amount should the father be given credit for?

Background

The applicant mother is 41 years old (born 10 September 1982). The respondent father is 40 years old (born 6 November 1983).
The parties were not married, but lived together from July 2007 until they separated in January 2010. There are two children of this relationship:

Mekayla, born 11 October 2002 (now 21 years old), and;

Ryan, born 18 August 2007 (now 16 years old).

Litigation History

This application was started on 28 June 2022. The father filed an Answer on 5 August 2022. The mother’s Reply was filed on 22 August 2022.
These are the relevant orders made in the case:

• 7 November 2022 temporary consent order by Paulseth, J. for support for two children of $1,454 per month from 1 December 2022, on 2021 income of $138,652 (amount based on summer only formula[^1] for Mekayla, and full table support for Ryan); and,

• 13 February 2023 by Paulseth, J. final sole decision-making responsibility to mother, and final orders re parenting time, travel and passports.

Claims at the Trial

The mother made these claims at the trial regarding child support:

(a) child support should start at in 2013;

(b) child support should be based on the father’s disclosed income for those years (2013 onwards);

(c) the father should be given credit for payments made in those years (mother claims total credit to father of $42,524);

(d) current and on-going child support should be based on imputed income of $138,652;

(e) the father should pay net reasonable s. 7 expenses proportionate to the parent’s incomes (currently father to pay 70% and mother to pay 30%);

(f) no claim is made for retroactive s. 7 expenses;

(g) the court should calculate the net cost of children’s s. 7 expenses relying on each child:

(i) applying for all grants, bursaries and scholarships available to each; and,

(ii) each child has an obligation to contribute $3,000 towards their academic expenses each year; and,

(h) annual financial disclosure.

The father made these claims at the trial:

(a) no order for retroactive support should be made;

(b) support should start on the date he was served with the application, 8 July 2022;

(d) if retroactive support is ordered, the father should be given credit for payments made from 2010 to November 2022 (the father claims total credit of $179,500 to $203,500).

The Law on Child Support

The objectives of the Child Support Guidelines[^2] are set out in section 1:

(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.

The purpose of the Child Support Guidelines is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency.[^3]
The enactment of the Child Support Guidelines in 1997 marked a paradigm shift in Canadian child support law away from a need-based approach to one which clearly established the child’s entitlement to support commensurate with the payor’s income (emphasis added).[^4]
The child support regime contemplates that the family as a whole — including the child — will share the rising and falling fortunes of the payor parent, just as they would have before the separation.[^5] The payor’s interest in certainty and predictability is heavily qualified by the Guidelines-era principle that more income means more support. The payor cannot reasonably expect their child support obligations to remain static in the face of material increases in income.[^6]
The courts have and need wide discretion to make and to vary child support orders to ensure the correct amount of child support is being paid, and to adapt to the enormous diversity of individual circumstances that families face. Wide judicial discretion is necessary to respond to the multiplicity of factual situations produced by human behaviour.[^7]
Judicial discretion must be structured to safeguard the child’s interest in receiving the appropriate amount of support to which they are entitled.[^8]

Retroactive Child Support Orders

The Start Date for Support

Legal Considerations

The court’s authority to make retroactive support orders is contained in clause 34 (1) (f) of the Family Law Act[^9], as follows:

Powers of court

i. 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;

Any support claimed after an application is issued is prospective support, not retroactive support.[^10]
It is no longer necessary to first ask whether retroactive relief is warranted as a general proposition.[^11]
Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations.[^12]
Retroactive child support is a debt. There is no reason why it should not be awarded unless there are strong reasons not to do so.[^13]
Retroactive awards are not exceptional. They can always be avoided by proper payment.[^14]
In the Guidelines era, the payor parent is always under a free-standing legal obligation — independent of any court order — to pay child support commensurate with income.[^15]
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.[^16]
Child support obligations arise upon separation, and retroactive awards provide a means to enforce such pre-existing, free-standing obligations and to recover monies owed but yet unpaid.[^17]
The Supreme Court of Canada has set out the framework that should be applied for applications to retroactively increase support:[^18]

(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[^19] continue to guide this exercise of discretion, as described in Michel v Graydon.[^20] 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; and,

(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.

This framework addresses 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.[^21]
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. These are the steps for the court to take:[^22]

(a) The first step will be to determine the presumptive date of retroactivity as described in Colucci;

(b) 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 will guide the exercise of that discretion, as described in Michel v. Graydon; and,

(c) 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.

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.[^23]
The framework set out in the leading cases on retroactive child support[^24] balances the competing interests of certainty and predictability, with the need for flexibility in a way that incentivizes payment of the right amount of child support when it is due and the timely disclosure of financial information — the linchpin of a just and effective family law system. Rules which create perverse incentives to ignore or postpone parental support obligations are to be firmly rejected in favour of legal standards designed with the fundamental purposes of child support in mind.[^25]
Effective notice is given when the recipient provides some notice of his or her desire to review and adjust child support. 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.[^26]
Courts should avoid creating any incentive whatsoever for payor parents to avoid meeting their child support obligations.[^27]

The Significance of Disclosure, or Non-disclosure

Frank disclosure of income information by the payor lies at the foundation of the child support regime. The duty to disclose financial information is the most basic obligation in family law. A payor’s failure to make timely, proactive and full disclosure undermines the policies underlying the family law regime and the processes that have been carefully designed to achieve those policy goals. Without proper disclosure, the system simply cannot function and the objective of establishing a fair standard of support for children that ensures they benefit from the means of both parents will be out of reach.[^28]
Retroactive child support awards will commonly be appropriate where payor parents fail to disclose their increases in income. At any given point in time the payor has knowledge of what their support obligation should be, while the recipient parent may not.[^29]
Full and frank disclosure is also a precondition to good faith negotiation. Without it, the parties cannot stand on the equal footing required to make informed decisions and resolve child support disputes outside of court. Promoting proactive payor disclosure thus advances the objectives — found in s. 1 of the Guidelines — of reducing conflict between the parties and encouraging settlement.[^30]
The exercise of judicial discretion must encourage financial disclosure and in no way reward those who improperly withhold, hide or misrepresent information they ought to have shared. Proactive disclosure of changes in income is the first step to ensuring that child support obligations are tied to payor income as it fluctuates.[^31]
It would be “untenable to suggest that a parent who fails to provide financial disclosure can assume that the amount being provided is adequate because the recipient parent has not brought a court application”[^32]. Payors should not be better off from a legal standpoint if they do not pay the child support the law says they owe. Nor should payors receive any sort of benefit or advantage from failing to disclose their real financial situation or providing disclosure on the eve of the hearing.[^33]
Retroactive child support awards will commonly be appropriate where payor parents fail to disclose their increases in income. At any given point in time the payor has knowledge of what their support obligation should be, while the recipient parent may not. Failure to disclose material information is the cancer of family law litigation.[^34]
The failure to disclose annual increases in income and pay the proper amount of child support eliminates any need to protect the payor’s interest in certainty.[^35]

Analysis regarding Disclosure

The father did not disclose his income to the mother for many years, while he was paying child support intermittently or not at all, at times, and in an amount far below what the guidelines provided for his income level.
The disclosure provided by the father in the court case was far from complete. He filed only one financial statement, sworn 5 August 2022, sworn a full year before the trial. No up-dated financial statement was filed for trial, as required by the Family Law Rules.[^36] No up-dating document was filed, as required by the Family Law Rules[^37], after 1 November 2022 (11 months before the trial).
While some disclosure was produced, the following documents (production of which is required) were not provided:

• Notices of Assessment for the years 2018, 2019, 2020, 2021, 2022

• Income Tax Returns for the years 2010 to 2017

What is the Presumptive Start Date for Support?

The Colucci[^38] Framework

The steps for the court are these:

a. determine the presumptive date of support;

b. determine if the court should depart from the presumptive date of retroactivity where the result would otherwise be unfair (using the D.B.S. factors in the exercise of that discretion, as described in Michel v. Graydon;) and,

c. quantify the proper amount of support for each year since the date of retroactivity, calculated in accordance with the guidelines.

To determine the presumptive start date of support, the court must determine the date of formal notice and the date of effective notice.

Analysis re Presumptive Start Date of Support

The date of effective notice is 2013, when the mother notified the father that the amount of support was inadequate.
The date of formal notice is July 2022 when the father was served with the application. The presumptive start date of support should not be more than three years before the date of formal notice.[^39] Therefore, the presumptive start date for support is July 2019.

Should the Court Deviate from the Presumptive Start Date of Support?

Where a retroactive increase in child support is appropriate, the majority in D.B.S. suggested that the date of retroactivity should generally be the date of “effective notice”.[^40] “Effective notice” in this context was said to simply require the recipient to “broach” the subject of an increase in child support.[^41] Recipients should be encouraged to move discussions forward after giving effective notice. Retroactive awards should generally extend no further than three years before the date of formal notice. This is known as the “three-year rule”, although it is a presumption only.[^42]
The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness).[^43]

Analysis about whether the Court should Deviate from the Presumptive Start Date of Support

The mother asks the court to deviate from the presumptive start date of support and order support starting in 2013.
The father opposes this. He does not want any retroactive support order made. He says that support should start in July 2022, and that no order for retroactive support should be made, as he says he has paid this support.
The parents separated on 1 January 2010. The mother’s evidence is that no support was paid between July 2010 and 30 December 2013. At separation and afterwards, there was no separation agreement, no formal contract, and no court order regarding child support.
The father states that he was aware that he had to pay child support and he agrees that he owes child support from the time of separation. His evidence is that he has paid it.
After the separation in 2010, the parties did discuss child support. The mother says that in 2011 the father proposed that he would pay the condo fess of $270 per month. There was no agreement, and no disclosure was made regarding the father’s income. The father says that he did not agree to this. The father did not, in fact, pay the condo fees, the amounts unpaid were added to the mortgage (which the mother was paying) and the condo had to be sold in 2013 to avoid a forced sale by foreclosure.
The father knew he had a legal obligation to support the children, acknowledged this in his evidence, and made proposals about how to meet that obligation. In 2013 the parents discussed child support. The father proposed to pay $500 per month, an amount that the mother did not agree to, but acquiesced to, although she knew it to not be enough money for her to support the children, as she had no financial disclosure from the father, did not know his income, and had no basis on which to determine an appropriate amount of support. The father was often late, often paid a lesser amount, did not pay unless asked by the mother, or did not pay at all.
Over the years, the mother says that she asked the father to increase support. She received many excuses from him. The father says that the mother never said that she needed more money. The mother and the two children were each independently reaching out to the father for support and were getting various excuses. She sent him e-mails and texts asking for the support and asking for more support (more than the $500 per month), and she produced some of these messages at the trial, including messages dated 2013 and 2015. In 2013 she asked the father to re-negotiate support and increase the amount. He refused. He constantly told the mother he could not pay more. In 2015 the mother sent the father e-mails reminding him to pay, and reminding him to pay the correct amount, and to pay on time. The provenance of the e-mails produced by the mother regarding child support, the fact that they were sent, and the fact that they were received was not disputed.
The mother says that she accepted whatever amounts he paid, even though she and the children needed more, it was clear that the amounts were not enough, and the payments were often late. She says that she did not know the father’s income during those years, and it turned out that his income was far more than she thought it was. The father says that she always knew his income.
In the fall 2015, when the oldest child Mekayla began in-person university classes, the parents agreed that the father would pay $250 per month directly to Mekalya, and $250 per month to the mother for Ryan. However, the father often did not send Mekalya the money, Mekayla had to contact him to ensure payment, and he often ignored her messages and did not send her the money. The last payment to Mekayla was in March 2022. She has asked her father for more money since then, but he has not given it to her.

The Deviation Factors, as Applied in Michel v Graydon

The deviation factors, previously known as the D.B.S. factors, are these:

(a) the recipient’s delay in seeking retroactive support;

(b) the payor’s conduct;

(d) hardship entailed by a retroactive award.

It is no longer necessary to first ask whether retroactive relief is generally appropriate before moving to the question of how far back retroactive relief should extend. Discretionary factors parallel to those considered in D.B.S. may justify departing from the presumptive date in favour of a longer or shorter period of retroactivity. This presumption-based approach should be mirrored where the recipient seeks a retroactive increase. Once a past material change in income is established, a presumption is triggered in favour of retroactively increasing support to a certain date, with the D.B.S. factors guiding the court’s exercise of discretion in deciding whether to depart from that date.[^44]
These factors were again considered by the Supreme Court in both Michel v. Graydon,[^45] and Colucci.
In D.B.S., the Court also drew attention to three interests which must be balanced to achieve a fair result in retroactive variation cases:

a) first and foremost, the child’s interest in receiving the appropriate amount of support to which they are entitled;

b) second, the interest of the parties and the child in certainty and predictability; and,

c) third, the need for flexibility to ensure a just result in light of fluctuations in payor income. [^46]

The child’s interest in a fair standard of support commensurate with income is the core interest to which all rules and principles must yield. A fair result that adequately protects this interest will sometimes lean toward preserving certainty, and sometimes toward flexibility.[^47]
At the stage of considering the D.B.S. factors, disclosure will once again be a key consideration in assessing whether the payor’s conduct operates to shorten or lengthen the presumptive period of retroactivity.[^48]
The four D.B.S. factors no longer operate twice (once on entitlement to retroactive support, and then again, on the date of retroactivity), but rather, are concentrated on one question: should the court depart from the presumptive date of retroactivity to achieve a fair result (emphasis added)? It is on this question only that the factors of delay, payor conduct, the child’s circumstances and potential hardship are brought to bear (emphasis added).[^49]
A recipient is thus no longer required to demonstrate as a preliminary matter that a retroactive award is appropriate based on the D.B.S. factors. Once an increase in the payor’s income has been shown, the only question is how far back retroactive support should extend.[^50]

Delay

The obligation to support one’s child exists irrespective of whether an action has been started by the recipient parent against the payor parent to enforce it, because child support is a continued obligation owed independently of any statute or court order. While a child support debt may be forgiven by a court, it remains true that such a debt is owed from the moment it ought to have accrued – no matter the length of the delay.[^51]
Courts should examine whether the reason for delay in bringing the application 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.[^52]
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.[^53]
It is generally a good idea to seek child support as soon as practicable, but it is unfair to bar parents from applying for the financial support they are due because they put their safety and that of their children ahead of their financial needs or because they could not access justice earlier.[^54]
The recipient’s delay in enforcing arrears is irrelevant to the analysis. Courts must bear in mind that child support arrears are a debt. Under general principles of debtor-creditor law, the debtor is required to seek out and pay the creditor, and debts are not forgiven by the mere passage of time in the absence of a statutory limitation period.[^55]
A delay will be prejudicial only if it is deemed to be unreasonable, taking into account a generous appreciation of the social context in which the claimant’s decision to seek child support was made. A delay motivated by any one of the reasons set out below should generally not be understood as arbitrary within the meaning of D.B.S.:[^56]

(a) fear of reprisal/violence from the other parent;

(b) prohibitive costs of litigation or fear of protracted litigation;

(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; and,

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

These situations raise issues of impracticability and inaccessibility to justice on the one hand, and on the other, fear and danger.[^57]
In the absence of a clear agreement or court order that waives disclosure requirements or provides for another mechanism to calculate child support, delay will rarely substantially prejudice a payor parent. The payor knows about the existence of a child support obligation and that the quantum of the obligation is based on the payor’s line 150 income, calculated annually. Indeed, the payor is usually the only party who knows about an increase in that relevant income.[^58]
Put simply, delay has a very limited role to play in determining the availability and extent of a retroactive child support order. Any delay on the part of a recipient parent must be viewed in light of available information, resources, and social context, including gender, social and economic inequities. Given the structure of the Guidelines and the well understood, and now widely accepted, philosophy that child support is an obligation on the part of both parents, the amount of which depends on the payor’s income, there will be few cases where delay can be truly seen as unreasonable or a factor that should preclude the award of previously-owed support to children.[^59]

Analysis regarding Delay

The mother’s delay in starting a court case for support is understandable, in these circumstances:

(a) the mother was struggling to raise the two children as a single parent, and with inadequate child support, and sometimes with no child support;

(b) she was receiving some support from the father;

(d) she was hoping to get income disclosure from the father;

(e) while there were times when the relationship between the parents was cordial, this was not constant, and the mother kept the peace for the sake of the children;

(f) she feared the father would use an incident involving with police against her, and that children’s aid would become involved with the family, and possibly start a protection case;

(g) she did not want to have conflict with the father; and,

(h) there was an obvious power imbalance as the mother accepted what the father dictated for many years.

Delay is not a factor in this case, as the father has acknowledged his legal obligation to pay child support, and to pay since separation, and both parents say he has paid (although they disagree on the amount).

Blameworthy Conduct

Courts should apply an expansive definition of blameworthy conduct.[^60]
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.[^61]
Blameworthy conduct is not a necessary trigger to the payor’s obligation to pay the claimed child support. Where present, it weighs in favour of an award and may also serve to expand the temporal scope of the retroactive award.[^62]
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.[^63]
Courts have increasingly recognized that the payor’s duty to disclose income information is a corollary of the legal obligation to pay support commensurate with income.[^64]
The pivotal role of disclosure comes as no surprise since the premise underlying the Guidelines “is that the support obligation itself should fluctuate with the payor parent’s income”.[^65] The structure of the Guidelines thus creates an informational asymmetry between the parties. In a system that ties support to payor income, it is the payor who knows and controls the information needed to calculate the appropriate amount of support. The recipient does not have access to this information, except to the extent that the payor chooses or is made to share it. It would thus be illogical, unfair and contrary to the child’s best interests to make the recipient solely responsible for policing the payor’s ongoing compliance with their support obligation.[^66]
Since D.B.S., various courts have accepted and acted upon the principle that failing to disclose an increase in income is blameworthy conduct justifying variation to the date of the change.[^67] “Blameworthy conduct”, as that concept has developed in the cases, does not simply extend to the most egregious cases of deception or intentional evasion, like this case. It may also extend to cases of mere passivity and “taking the path of least resistance”.[^68]
The date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct (irrespective of the degree of blameworthiness), including failure to disclose material information. Payor parents are “subject to a duty of full and honest disclosure”. Where the payor fails to comply with this duty and leaves the recipient unaware of increases in income, a retroactive award “will commonly be appropriate” because non-disclosure “eliminates any need to protect the payor’s interest in the certainty of the child support obligations”.[^69]
The primary focus needs to be on the payor’s actions and their consequences.[^70]

Analysis regarding Blameworthy Conduct

The father has seriously underpaid support for many years. He says he has paid $500 per month right from separation in 2010, every month, during every year, until November 2022, when the temporary support order was made. The mother disputes this.
It is clear that based on his income in those years (2010 to 2022), there is no year since separation during which the table amount of support would fall as low as $500 per month (the amount the father says he paid) or would fall below $500 per month (the amounts the mother says he paid).
$500 is the correct table amount for these incomes in the years 2010 to 2022:

Years	Relevant Incomes
2010 to 2011	$33,700
2012 to 2017	$34,400
2018 to 2023	$32,800

This chart sets out the table amounts the father should have been paying based on his incomes in these years:

Year	Father’s income	Table amount	Income related to table amount father proposed	Table amount father proposed
2010	$65,274	$976	$33,700	$500
2011	$48,813	$735	$33,700	$500
2012	$68,355	$1,014	$34,500	$500
2013	$103,303	$1,456	$34,400	$500
2014	$100,522	$1,422	$34,400	$500
2015	$51,878	$771	$34,400	$500
2016	$111,809	$1,560	$34,400	$500
2017	$100,963	$1,428	$34,400	$500
2018	$154,986	$2,137	$32,800	$500
2019	$162,641	$2,229	$32,800	$500
2020	$138,652	$1,944	$32,800	$500
2021 January to August	$138,652	$1,944	$32,800	$500
2021 September to December: using “summer formula”[^71]	$138,652	$1,457
2022 using “summer formula”	$105,992	$1,154	$32,800	$500
2023 using “summer formula”	$89,346	$1,000	$32,800	$500

A child support payment of $500 per month, even if had been paid every month (and the court does not believe that it was, and does not accept the father’s evidence on this) would have been far too little, based on the father’s income for the years in question.
The father had repeated and ample notice of the claim for child support, and of his obligation to pay child support. The father knew he had financial obligations for the children. He says he helped to buy things for the children, and he tried to give the children gifts, which he says he thought were a form of support. He was aware of his obligation to contribute to the support of the children for many years, and indeed, did contribute to the support of the children for many years (albeit in an insufficient amount and not consistently).
The father attempted to argue he had not committed any blameworthy conduct. He underpaid support, or did not pay support at all, for many years, and did not disclose his income to the mother for many years. The mother received no financial disclosure about the father’s income from separation in 2010 until the court case was started in 2022. For all of those years, the father’s income was unknown to the mother. She had no way of knowing what amount of support he should be paying. This behaviour is blameworthy conduct.
The father has engaged in significant, egregious and long-term blameworthy conduct. He has paid only a very modest amount for support, for many years, basically since 2013, (although the separation was in 2010).[^72] Even if the court accepted the father’s evidence on what was paid as a table amount for those years (2010 to 2022), (which it does not), he underpaid support significantly for many years, based on his income for those years. The father has repeatedly preferred his own interests to the children’s interests.
The father knew that he had an obligation to pay support based on his income and he deliberately withheld that information from the mother so that she would not seek more support. It is not believable that the father did not know for a period of more than 10 years, during which he says he was paying child support, that child support was based on his income and that the monthly table amount should be in accordance with the Child Support Guidelines. Gone are the days when a payor parent can credibly say that they have no idea that child support is based on their income.

Circumstances of the Children

If there has been a hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour not only of an award, but also of extending the temporal reach of the award.[^73]
Any kind of hardship is not a necessary antecedent to making a retroactive support award. A payor’s support obligation does not disappear when the child no longer requires support. If this factor were to tip the balance against making a retroactive award, then, in essence, the payor will have profited from “holding off” on paying increased child support.[^74]
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.[^75]
The fact that the child did not have to suffer hardship because of their custodial parent’s sacrifice is not one that weighs against making a retroactive support order. Rather, the recipient parent’s hardship, like that of a child, weighs in favour of the retroactive support award and an enlarged temporal scope.[^76]
There is no requirement to prove any need on the part of the children for them to receive as retroactive support amounts that have not been paid as required, and a payor parent cannot avoid a retroactive award by arguing that the recipient parent was able to sufficiently care for the child on his or her own.[^77]
The fact that the recipient will indirectly benefit is not a reason to refuse to make the retroactive award of support.[^78]

Analysis regarding the Circumstances of the Children and the Mother

The father’s evidence was that he’s not sure the children suffer if he does not pay support on time. He believes that the children have not gone without.

The court disagrees.

The circumstances of the children have been disadvantaged. The mother has provided for most of their needs, but this has undoubtedly been difficult for her to do. The mother shouldered the needs of the children, over many years, when the father did not pay, paid late, or paid an inadequate amount.
The mother and the children have always been living in rented homes (since the sale of the condo in 2013). The mother’s finances are so difficult that she has always had to have a family member live with them to get the benefit of their contribution to the rent, or she could not have afforded it.
The mother was not able to afford sports, extra-curricular activities, family outings, out of town weddings, or vacations for the children.
The mother’s family and friends have helped her out financially over the years, have given her money and have paid for necessities for the children that she could not afford, and the father would not pay for.

Hardship

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.[^79]
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.[^80]
It must be taken into account that the payor had the benefit of the unpaid child support for the full time in which it was unpaid and such monies may have funded a preferred lifestyle or the very purchase of property which may now need to be sold. This is a crucial part of the equation.[^81]
A showing of hardship will not automatically justify a departure from the presumed date of retroactivity. Hardship carries much less weight where brought on by the payor’s own unreasonable failure to make proper disclosure and give notice to the recipient. Hardship to the payor must also be viewed in the context of hardship to the recipient and child if the court were to extend the period of the retroactive decrease. It is a holistic and relative assessment.[^82]
In all cases, hardship to the payor may be addressed by the form of payment.[^83]
Any hardship to the father from a significant retroactive order should not be used to reduce the amount of support, or alter the start date of support. The case law is clear (D.B.S., Michel v Graydon, and Colucci, all S.C.C. cases) that any hardship for the payor from such an order is to be addressed with a payment plan.

Analysis re Hardship

The father is a high income earner, and has been consistently for many years. If he cannot make lump sum payments towards the arrears, he can re-pay the arrears owing with a suitable re-payment plan. If no order for retroactive support is made, there will definitely be hardship for the mother and the children.

Summary regarding Start Date of Support

Balancing all these considerations the court will deviate from the presumptive start date for support and will order support to start in 2013, as claimed by the mother. Even the father’s evidence is that he was paying support at this date.
Child support for these two children should start on 1 January 2013 (a reasonable start date requested by the mother). The father shall get credit for payments made since then.

Imputing Income

The Law regarding Imputing Income

Section 19 of the Child Support Guidelines provides that the court may impute to a spouse “such amount of income … as it considers appropriate” and provides a non-exhaustive list of such circumstances. These are the relevant portions of s. 19:

19.(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse;

(e) the spouse’s property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax.

Section 1 of the Guidelines stipulates that one of its objectives is to establish a fair standard of support for children to ensure that they benefit from the financial means of both parents after separation. The need to ensure appropriate financial support for the children is dealt with by imputing income. 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 legal obligation, a parent must earn what he is capable of earning. If they fail to do so, they will be found to be intentionally under-employed. Clause 19(1)(a) of the guidelines is perceived as being a test of reasonableness.[^84]
As a general rule, separated parents have an obligation to financially support their children and they cannot avoid that obligation by a self-induced reduction of income.[^85]
The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:

(a) Is the party intentionally under-employed or unemployed?

(b) If so, is the intentional under-employment or unemployment required by virtue of reasonable educational needs? and,

There is no need to find a specific intent to evade child support obligations before income is imputed. The payor is intentionally under-employed if that parent chooses to earn less than he is capable of earning. That parent is intentionally unemployed when he chooses not to work when capable of earning an income.[^86]
The court has a broad discretion to impute income where the father is not working to his potential. In exercising discretion, a court will bear in mind the objectives of the guidelines to establish fair support based on the means of the parents, in an objective manner that reduces conflict, ensures consistency, and encourages resolution. The fundamental principle is that the court must estimate the actual means which the parent has available for child support.[^87]
These are the general principles to be considered regarding child support and when determining whether to impute income:[^88]

(a) The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices;

(b) A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children;

(c) A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent;

(d) Imputing income to a parent on the basis that the parent is "intentionally under-employed or unemployed" does not incorporate a requirement for proof

(e) of bad faith. "Intentionally" in this context clarifies that the provision does not apply to situations beyond the parent's control;

(f) The determination to impute income is discretionary, as the court considers appropriate in the circumstances;

(g) Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision;

(h) A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action; and,

(i) A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.

Even if the court decides to impute income due to the payor’s reckless behaviour or misconduct, it is not bound to impute income at the payor’s previous income level. It can impute income in an amount different than what the payor had been previously earning, or it can impute different amounts of income for different time periods. Courts have a significant degree of discretion when imputing income.[^89]
These are the legal considerations for imputing income to a person who, due to their own fault, is not earning what they are capable of earning:[^90]

The list of categories set out in section 19 is not exhaustive. The court has the discretion to impute income in circumstances that are not only analogous but also those in which imputation would be consistent with legislative intent.[^91]

The wording of section 19 of the Guidelines is open-ended (“which circumstances include”), indicating that the categories listed in that section are merely examples of situations in which income may be imputed. There are, therefore, other potential scenarios in which income can and should be imputed.[^92]

In determining a party's capacity to earn income, the principles which the court should consider include the following:[^93]

(a) There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children;[^94]

(b) The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments;[^95]

(c) If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances, and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations;[^96]

(d) When a parent experiences a sudden change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities in order to satisfy their obligation to contribute to the support of their children;[^97]

(e) 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;[^98]

(f) The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute;[^99] and,

(g) A parent who decides to stay at home to care for subsequent children, or to work in the home at a reduced rate so that they can continue to care for the children, may be imputed a reasonable income in the absence of evidence to support a finding that the parent's underemployment is required by the needs of the subsequent children within the meaning of section 19(1)(a) of the Guidelines.[^100]

The burden of proof is on the payor to satisfy the court on a balance of probabilities the amount of income upon which child support should be based. Where this information is lacking or is insufficient, the court may need to rely on other information.[^101]
The third question in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” 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.[^102]

Imputing Income: Adverse Inference for Failing to Provide Disclosure

The parent must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the court. [^103]
The court should draw an adverse inference against the respondent for his failure to comply with his disclosure obligations as provided for in s. 21 of the Guidelines, and impute income.[^104]
A payor cannot fail to comply with the rules about disclosure and then benefit from his behaviour.[^105]

Income Determination: Evidentiary Basis

There must be an evidentiary basis to make an income determination. [^106]
The onus is on person requesting it to show a reasonable inference upon which the order can be made. [^107]

Analysis Regarding Imputing Income

Father’s Income

The father is a carpenter and says that his current income is $50.90 per hour, and that he works 32-37 hours per week. His current income would then be $84,697 to $97,931 per year.
In November 2022 the court ordered support based on the father’s 2021 income of $138,652.30. The income amount appears to have been on consent, and the father was represented by a lawyer.
At trial, the father’s position was that for current child support the court should rely on his income for 2022 of $104,000.
However, this is the history of the father’s income over the previous 13 years:

Year	Father’s income
2010	$65,274
2011	$48,813
2012	$68,355
2013	$103,303
2014	$100,522
2015	$51,878
2016	$111,809
2017	$100,963
2018	$154,986
2019	$162,641
2020	$138,652
2021	$138,652
2022	$105,992
2023	$89,346

There were recent significant changes in the father’s income, some of which changes are dramatic.

(a) From 2019 to the next year 2020, the income went down by $23,989, a reduction of about 15% in one year;

(b) From 2021 to the next year 2022, the income went down by $32,660, a reduction of about 25% in one year;

(d) From 2019 to 2023, the income went down by $73,295 in a period of 4 years, a reduction of 45%.

There was almost no evidence regarding the changes in the father’s income. No explanation for the reduction in incomes was offered by the father.
The mother suggested that he was intentionally declining offers of overtime to artificially reduce his income and thereby pay less in child support. The father denied this but offered no explanation for these significant income deductions over several years.
The father significantly underpaid support for these children, for many years, when he knew he had a legal obligation to support them. The father has clearly failed to properly comply with his child support obligation, and intentionally so. He has made choices not to make full and frank disclosure, and in fact, not to even make any disclosure of his income to the mother, over many years.
The court can draw an adverse inference against a party for his failure to comply with the disclosure obligations (as provided for in the Family Law Rules, the Family Law Act, the Child Support Guidelines), and will do so in this case. The father cannot fail to comply with the rules about disclosure and then rely on the inadequate information produced to his benefit.
All support paying parents have an obligation to maximize their income. Income shall be imputed to the father under s. 19 of the Child Support Guidelines.
In determining an amount to impute as income for the father for child support purposes, the court reviewed the age, education, experience, skills and health of the father, as well as his current earning history, the amount of income he could earn if he worked to capacity, his recent work history, and his ability to earn income, to determine an amount that is fair and reasonable.
Imputed income is a finding by the court not of what a payor parent is actually earning, but rather what that parent is capable of earning. The father was recently capable of earning as much as $162,641. The average income earned by the father for the previous five year period (2019 to 2023) is $127,057. This is a reasonable amount to impute for the father’s income. The court could, but did not, impute the father’s income at a higher number, including the $162,641 earned in 2019. The court imputes income to the father for current and ongoing child support based on imputed income of $127,057. This is what the father is capable of earning.

What Amount should the Father be Given Credit for Paying?

The parents agreed that the father did make payments from 2013 to 30 November 2022 (the date of the temporary consent order for support). The parents also agreed that all payments were made electronically, and that cash was not used for any of these payments. However, they did not agree on the amount of those payments.
The mother’s evidence was that the payments she received, from 2013 to November 2022, totaled $42,524. The mother produced evidence of the bank transfers over the years to support this calculation. The mother says that the father has a benefits package that is quite good, although it does not cover 100% of those expenses (the mother paid any additional amounts). The mother also said the father paid for things for the children each year (e.g., birthday parties, her son’s braces (which the father’s insurance covered), camp fees, glasses, medication and dental) in the amounts of $150 to $200 per year, for a total of $1,350 to $1,800 (from 2014 to 2022). The mother says that the total payments that the father should get credit for since separation is $43,874 to $44,324. This averages to $369 to $372 per month.
The father’s evidence was that he made the following payments, from 2010 to 2022:

(a) $500 per month every month, for every year, from 2010 to November 2022, for a total of $77,500;

(b) additional amounts paid every year, from 2010 to 2022, by providing things for the children (e.g., he says for braces, prescription glasses, puffer, EpiPen, school uniforms, shoes, gym uniforms, school trips, electronics, phone bill, restaurant meals, track club, allowances, car repairs) in the amount of $8,000 to $10,000 per year, each year, for a total of $96,000 to $120,000, all of which the father believes should count as child support; and,

(c) allowances for the children over the last four years totaling $6,000, which the father believes should count as child support.

The father says that total payment he should get credit for since separation is $179,500 to $203,500. No evidence was produced by the father to support any of these payments made, nor any of the expenses incurred. This averages to $1,508 to $1,710 per month.

The father’s evidence (which he said several times) was that he has no trouble paying the table amount now.
The father did not dispute the calculations in the mother’s chart regarding his income and the appropriate table amounts over the years, and gave evidence that the chart in the mother’s evidence-in-chief affidavit[^108] was correct.
The court accepts the mother’s evidence on these issues. She was credible, organized, and had documents to support the bank transfer payments made. The father had no evidence to support his oral testimony on these issues, and the court did not believe his testimony. The court finds that the correct start date for support is 2013. The amount that the father should be given credit for in child support payments from 2013 is $43,874 to $44,324. In all of the circumstances, it is reasonable for the court to give him credit for payments in the sum of $44,324.

Orders

The father shall pay child support to the mother, according to the Child Support Guidelines table amount, for two children, as follows:

(a) From 1 January 2013, $1,456 per month, on income of $103,303;

(b) From 1 January 2014, $1,422 per month, on income of $100,522;

(d) From 1 January 2016, $1,560 per month, on income of $111,809;

(e) From 1 January 2017, $1,428 per month, on income of $100,963;

(f) From 1 December 2017, $1,483 per month, on income of $100,963;

(g) From 1 January 2018, $2,137 per month, on income of $154,986;

(h) From 1 January 2019, $2,229 per month, on income of $162,641;

(i) From 1 January 2020, $1,944 per month, on income of $138,652;

(j) From 1 September 2021, using the summer formula[^109], $1,640 per month, on income of $138,652;

(k) From 1 January 2022, using the summer formula, $1,300 per month, on income of $105,992;

(l) From 1 January 2023, using the summer formula, $1,520 per month, on imputed income of $127,057.

The father shall be given credit for child support payments from 2013 to 30 November 2022 of $44,324.
From 1 January 2024, the father shall pay net reasonable s. 7 expenses proportionate to the parent’s incomes (currently father to pay 70% and mother to pay 30%). The following are included in s. 7 expenses:

(a) Uninsured medical and dental expenses; and,

(b) Post-secondary expenses including, but not limited to tuition, books, residence/rent, meal plan/groceries, transportation, one computer per degree.

The parents shall calculate the net cost of children’s s. 7 expenses relying on each child:

(a) applying for all grants, bursaries and scholarships available to each; and,

(b) each child has an obligation to contribute $3,000 towards their academic expenses each year.

Father shall produce to mother every year by 1 July, starting in 2024, copies of his Income Tax Returns and Notices of Assessment pursuant to s. 24.1 and the disclosure requirements of the Child Support Guidelines.

Costs

The mother was successful in the application and is entitled to her costs. The parties may make submissions regarding amount of costs only, in writing, maximum two pages (plus Offers to Settle and summaries of time spent). Submissions regarding the amount of costs, only, shall be filed with a Form 14B, on this timeline:

(a) Mother by Friday 26 January 2024; and,

(b) Father by Friday 9 February 2024.

Released: 2024 01 05 ________________________

Justice Curtis