Court File and Parties

Date: February 13, 2024 Court File No.: D42864/22 Ontario Court of Justice

Between: Nicole Thomas, Applicant

And: Deshorn Kevin Charles, Respondent

Counsel: Akash Saha, for the Applicant The Respondent, Acting in Person

Heard: February 12, 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’ 14-year-old daughter (the child) for the period prior to January 1, 2023.

[2] The parties resolved all other issues in this case by final order of Justice Danielle Szandtner, dated August 1, 2023, including the father’s ongoing child support obligation. The father is required to pay the applicant (the mother) child support of $471 each month. This is the Child Support Guidelines (the guidelines) table amount for one child, based on the father’s 2022 income of $51,160.

[3] The mother seeks an order for the father to pay her child support retroactive to June 1, 2019, based on the annual income he reported each year in his income tax returns. She agreed in submissions to give the father credit of $1,700 for amounts he paid on behalf of the child from June 1, 2019 until the end of 2022.

[4] The father submits that no support should be ordered for the period prior to June 1, 2023. He claimed he remained in a relationship with the mother until September 21, 2021. He also claimed he paid support, or purchased items for the child, in excess of what he would have been required to pay the mother pursuant to the guidelines.

[5] Both parties testified and were cross-examined.

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

a) When did the parties separate? b) What is the presumptive start date for child support? c) Should the court deviate from the presumptive start date, and if so, when should support start? d) How much child support should the father pay the mother for each year he is required to pay support? e) What credits, if any, should the father receive for amounts he paid on behalf of the child until the end of 2022? f) How should any support arrears be paid?

Part Two – Brief background facts

[7] The mother is 42 years old. She has two children from other relationships who live with her and the child.

[8] The mother is employed as a line cook at a restaurant and earns annual income of about $40,000.

[9] The father is 39 years old. He resides alone and has no other support obligations.

[10] The father has worked full-time for the past 12 years as a machine operator.

[11] The parties started cohabiting in 2009. They disagree on the date they separated.

[12] On September 17, 2021, the father was charged with assaulting the mother.

[13] The mother issued this application on July 4, 2022. She sought parenting and child support orders. She served the father with the application on July 17, 2022.

[14] The father did not attend at First Appearance Court on September 21, 2022, and the matter was adjourned. He attended at First Appearance Court on October 17, 2022 and was granted an extension until October 31, 2022 to serve and file his Answer/Claim.

[15] A case conference was held before Justice Roselyn Zisman on November 29, 2022. The father had still not filed his Answer/Claim or any financial disclosure. Justice Zisman made a temporary without prejudice order for the father to pay child support of $400 each month, based on an annual income of $43,500, starting on July 1, 2022. She gave him another extension until February 1, 2023 to serve and file his Answer/Claim and to provide the mother with financial disclosure. She endorsed that the return date was peremptory on the father, no further extensions to be granted.

[16] The father filed his Answer/Claim on January 20, 2023.

[17] On February 13, 2023, the father was convicted of the assault charge after a trial. He received a conditional sentence with a 6-month probation order.

[18] A case conference was held before Justice Szandtner on February 17, 2023. She ordered the father to provide the mother’s counsel, within 20 days, with all documentary evidence available to support his claim of voluntary payments having been made to the mother. She also ordered the father to provide further financial disclosure to the mother.

[19] On May 5, 2023, the father did not attend at court. Justice Szandtner made a temporary without prejudice order for the father to pay the mother child support of $471 each month, starting on June 1, 2023, based on an imputed annual income to him of $51,600. She also ordered the father to pay the mother costs of $1,000 for this step.

[20] On August 1, 2023, the parties consented to final parenting orders and a final order for ongoing child support. The issue of arrears of child support was sent to trial.

[21] On October 20, 2023, Justice Szandtner conducted a trial management conference. She ordered the father to provide the mother with an updated financial statement and other financial disclosure, including his 2015 to 2023 income tax assessments, by January 31, 2024. He did not do this.

[22] The mother deposed that the father has paid child support of $471 for each month of 2023. She is not seeking any further child support arrears from the father for 2023 and 2024.

[23] On November 6, 2023, the mother issued an amended application and specified the amount of retroactive support she was seeking from the father.

Part Three – Credibility and reliability

[24] The court found the mother to be a credible and reliable witness. She answered questions directly, without embellishment. Her evidence was consistent. She had a good recollection of events. No independent evidence, such as documentation, was produced by the father to contradict the mother’s version of events.

[25] The mother complied with each court order. She provided complete financial disclosure.

[26] The father was not a credible nor a reliable witness for the following reasons:

a) He had a poor memory of dates and events. b) His evidence was often contradictory. c) He failed to provide documentary evidence to support his evidence, despite being ordered to do so by Justice Szandtner. d) He failed to provide considerable financial disclosure ordered by the court. An adverse inference is drawn against him. e) He was required by the court to provide his last three years of bank statements. He provided only one year. He testified he did not go to his bank to obtain the other statements until two days before the trial. He then blamed the bank for giving him inaccurate statements. It was evident the father made little effort to comply with court orders. f) He was able to show the support payments he had made since December 2022 in the bank statements he provided. He did not credibly explain why similar information, if support payments had been made, would not be shown in his previous bank statements.

[27] The court preferred the evidence of the mother over the father when it conflicted.

Part Four – The date of separation

[28] The mother deposed that the parties separated at the end of the summer in 2015 and never reconciled.

[29] The father gave conflicting evidence about the date of separation. He gave separation dates in 2017 or 2018, 2020 and September 2021.

[30] The father did not raise an issue regarding the date of separation in his Answer/Claim. It appeared he raised this issue for the first time at trial.

[31] The father claimed he was spending five nights each week with the mother prior to their separation. However, he also testified he was living with a girlfriend for two years. He gave different dates for when he was in that relationship. He first said he lived with his girlfriend in 2015. He changed his evidence and said he lived with his girlfriend from 2017 to 2019. Another time, he said he was living with her from 2018 to 2020.

[32] The father acknowledged he kept a separate residence after 2015. He provided no documentation showing he continued in a relationship with the mother after 2015.

[33] The court finds the parties separated on or about September 1, 2015 and did not subsequently reconcile.

Part Five – Start date for child support

5.1 Legal considerations

[34] The mother served her application on the father on July 17, 2022. 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.

[35] 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;

[36] 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.

[37] 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.

[38] 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 [1] 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.

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

[40] 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.

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

[42] The first step in the retroactive support analysis is to determine the presumptive start date of support. This will be the date when the mother gave effective notice to the father, provided this date is not more than three years before the date of formal notice.

[43] 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.

[44] 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.

[45] 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.

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

[50] 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.

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

[52] 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.

[53] The fact that a 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. See: Michel - par. 123.

[54] 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.

[55] 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.

5.2 What is the presumptive start date for support to start?

[56] The first step in the Colucci framework is to determine the presumptive start date for support.

[57] The mother deposed she asked the father for additional child support every year starting in 2015. She said the father refused to provide her with more than the minimal clothing and supplies he was buying for the child.

[58] The father acknowledged the mother asked him for support repeatedly. He said he sometimes would not immediately pay what the mother asked for but would make it up later. He said the mother was satisfied with what he paid her.

[59] The court prefers the mother’s evidence for the reasons set out in Part 3 above.

[60] The court finds the mother gave the father effective notice of her request for increased support in 2015.

[61] However, the Supreme Court in Canada in Colucci set out that the presumptive start date for support cannot be more than 3 years from the date of formal notice.

[62] The date of formal notice to the father was July 17, 2022, when he was served with the application.

[63] The court finds the presumptive start date for support is July 17, 2019.

5.3 Should the court deviate from the presumptive start date for support?

[64] The second step in the Colucci framework is to determine if the court should deviate from the presumptive start date for support.

[65] The mother seeks a deviation back to June 1, 2019.

[66] The father also asks the court to deviate from the presumptive start date for support, so no support arrears are owing.

[67] The court will deviate to the June 1, 2019 start date requested by the mother for the following reasons:

a) She provided understandable reasons for her delay in coming to court to seek child support. She did not want to engage further with the father in court as she was the victim of family violence from him. He was convicted of assaulting her. The mother gave very specific evidence of other incidents of family violence towards her by the father. The father minimized these incidents as disagreements. He confirmed the mother’s fears of protracted litigation. He delayed this case, did not comply with financial disclosure orders and forced her to trial over the retroactive support issue.

b) The father engaged in blameworthy conduct. He did not pay an adequate amount of support to the mother until she brought this case to court. He preferred his own interests to the child’s interests. The father also did not provide complete or timely financial disclosure. The last financial statement he filed was sworn on January 31, 2023.

c) The circumstances of the child were disadvantaged by the father’s failure to pay adequate child support. The mother deposed she has been unable to take the child to activities because of the father’s failure to pay adequate support. She has had to assume a disproportionate amount of the child’s expenses and has gone into considerable debt as a result. She often had to work two jobs to make ends meet.

d) A retroactive support order may cause some hardship to the father. However, any hardship can be addressed with a payment order. The father owns a car. He has very low rent. He can afford the order the court will make.

e) Failing to make a retroactive support order would cause the mother and the child hardship. It would adversely affect their standard of living. It would keep the mother in debt, living from pay cheque to pay cheque.

[68] The father should consider himself fortunate the mother did not seek an earlier start date at trial. [2] The start date sought is a minor deviation from the presumptive start state. The court finds this result is fair in these circumstances.

5.4 Quantification of support accrued for each year support is ordered

[69] The third step in the Colucci framework is to quantify child support for each year the court orders it to be paid.

[70] This analysis here is straightforward. The parties agreed on the father’s annual income.

[71] The father’s income in 2019 was $42,837. The monthly guidelines table amount for one child was $391. The support amount accrued for the seven eligible months in 2019 totals $2,737.

[72] The father’s income in 2020 was $43,162. The monthly guidelines table amount for one child was $396. The support amount accrued for 2020 totals $4,752.

[73] The father’s income in 2021 and 2022 was $48,896. The monthly guidelines table amount for one child was $451. The support accrued for 2021 and 2022 totals $10,824.

[74] The parties agree the father has paid the child support ordered for 2023 and 2024.

[75] The total support amount accrued from June 1, 2019 until December 31, 2022 is $18,313.

Part Six – Credits for support paid and payment of support arrears

[76] The mother deposed that the father paid no support in 2019. She said the father made one support payment to her in December 2022 and from 2020 to 2022 purchased items such as clothing and supplies for the child. She estimated the total amount of all payments at $1,700. She agreed, in closing submissions, to credit the father for them.

[77] The father claimed he has purchased items for the child and provided cash to the mother, since June 1, 2019, in excess of the required guidelines table amounts.

[78] The father’s evidence on this issue was inconsistent and was not credible.

[79] The father claimed he paid the mother $200 each week until the summer of 2019. At the time, he said the mother told him she only wanted only $25 each week. Later the father said this conversation took place in 2017 or 2018.

[80] The father then said he paid the mother $150 each week after this conversation. However, he also said he saved about $10,000 for the two years after this conversation allegedly took place. He then said he paid the mother $6,000 of these savings, at $500 each month over two years in 2021 and 2022. Another time, he said he paid these amounts in 2020 and 2021.

[81] The father claimed he made these payments while also maintaining that he was not separated from the mother. His evidence was not credible.

[82] The father provided absolutely no evidence confirming he made any of these payments, despite being ordered to do so by the court. If a payor wishes to rely on additional payments made, the onus is on them to provide proof. See: Hunchak v. Anton, 2016 SKCA 44.

[83] The father claimed he transferred a vehicle in 2022 to the mother’s two older children. The mother was not aware when the father actually did this – they were not communicating with each other. However, the mother deposed this car is not working and has not been used by her sons. This did not benefit the child. The father will receive no credit for this.

[84] The court prefers the mother’s evidence about the amounts paid by the father for the child from June 1, 2019 until the end of 2022. The father will receive a support credit of $1,700.

[85] The court will order the father to pay the mother child support arrears of $16,613 ($18,313 - $1,700).

[86] To address any potential hardship, the court will permit the father to pay the support arrears over approximately four years. The order will permit him to pay them at the rate of $350 each month, starting on March 1, 2024. However, if the father is more than 30 days late in making any ongoing or arrears support payments, the entire amount then owing shall immediately become due and payable.

Part Seven – Conclusion

[87] A final order shall go as follows:

a) The father owes the mother child support arrears of $16,613 as of February 13, 2024, as calculated in this decision.

b) The father may pay the child support arrears at the rate of $350 each month, starting on March 1, 2024. However, if the father is more than 30 days late in making any ongoing or arrears support payments, the entire amount then owing shall immediately become due and payable.

c) Nothing in this order precludes the Director of the Family Responsibility Office from collecting support arrears from any government source (such as income tax or HST/GST refunds), lottery or prize winnings or inheritances. Any arrears collected in this manner shall not affect the $460 each month the father is required to pay towards the support arrears.

d) A support deduction order shall issue.

[88] The mother is the successful party and is entitled to her costs. If she seeks costs, she shall serve and file written costs submissions by February 27, 2024. The father will have until March 12, 2024 to serve and file any written response.

[89] The costs submissions shall not exceed 3 pages, double-spaced, not including any bill of costs or offer to settle. The submissions should be delivered to the trial coordinator’s office on the second floor of the courthouse.

[90] The court thanks the parties for their civil presentation of this case.

Released: February 13, 2024

Justice Stanley B. Sherr

Footnotes

[1] 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.

[2] The mother sought a 2015 start date in her amended application.