Hills v. Mitchell, 2025 ONCJ 403

DATE: July 30, 2025
COURT FILE NO. D70512/14
ONTARIO COURT OF JUSTICE

B E T W E E N:

TANISHA HILLS
THE APPLICANT NOT ATTENDING
APPLICANT

• and –

DERVAL ANTHONY MITCHELL
PAMELA JACOBSON, duty counsel assisting the RESPONDENT
RESPONDENT

LEEANNE SANGSTER, agent, FOR THE ASSIGNEE, THE CITY OF TORONTO
HEARD: JULY 28, 2025

JUSTICE S.B. SHERR

REASONS FOR DECISION

Part One – Introduction

[1] This was an uncontested hearing of the respondent’s (the father’s) amended motion to change the child support terms in the court’s order dated October 16, 2020 (the existing order).

[2] The existing order provides that the father shall pay child support to the applicant (the mother) for their two children, D.M. (now age 21) and T.M. (now age 19), in the amount of $576 each month, starting on November 1, 2020. This was the Child Support Guidelines (the guidelines) table amount for two children, based on the father’s annual income assessed at $38,400.

[3] The mother had executed an assignment of child support prior to January 31, 2017 to the City of Toronto (the assignee). The existing order fixed child support arrears owing to the assignee at $3,059.86. The father was permitted to pay the arrears at $170 each month. Arrears owing to the mother of $1,586.26 were rescinded.

[4] The existing order was made pursuant to a motion to change child support brought by the father. The mother was found in default in that proceeding and did not participate at the hearing.

[5] The father now seeks to terminate the existing order for each child effective when they turned 18 years old. He also asks that child support be adjusted in accordance with his actual income retroactive to November 1, 2020. He claims he has overpaid child support and seeks repayment by the mother.

[6] The mother did not file a response to motion to change or attend at court despite being given several opportunities to do so. She was found in default.

[7] The father still owes $609.88 to the assignee. The father did not dispute this amount. The assignee opposed the father’s motion to reduce those arrears.

[8] The court relied on the affidavits and financial statement filed by the father, and an affidavit regarding arrears owed to the assignee filed by one of their employees. The father also gave oral evidence at the hearing.

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

a) Should child support be terminated for either child? If so, when?
b) Has there been a material change in circumstances regarding the father’s income since the existing order was made?
c) If so, when is the presumptive start date that child support should be changed?
d) Should the court depart from the presumptive start date, and if so, when should any change in child support start?
e) If the court determines child support should be changed, what is the father’s income for each year from the start date chosen by the court?
f) How should any child support arrears, if any, be paid?

Part Two – Background facts

[10] The mother is 45 years old. The father is 58 years old.

[11] The parties briefly cohabited from the fall of 1994 until August 2005.

[12] The children have lived with the mother since the parties separated.

[13] The mother issued an application for parenting and child support orders on March 27, 2014. The father did not defend the application and was found in default.

[14] On October 3, 2014, the mother was given final custody of the children. The father was ordered to pay her child support of $418 each month. This was the guidelines table amount for two children based on the father’s annual income of $28,704.

[15] The father issued a motion to change on July 5, 2019. The mother did not defend that action and the existing order was made. The assignee contested that motion. At that hearing, the father asked the court to assess his ongoing child support obligations based on an annual income of $19,277.[1] The court imputed his annual income at $38,400.

[16] The father issued this motion to change on February 7, 2024. He struggled to serve the mother and several appearances were adjourned at First Appearance Court for him to serve her with his materials.

[17] On October 24, 2024, the court made an order for substituted service of the father’s motion to change materials on the mother. The father amended his motion to change on December 2, 2024 and served the mother with his materials on December 3, 2024.

[18] The mother did not attend subsequent court appearances and was found in default.

[19] The father filed a statement of arrears at the hearing provided by the Family Responsibility Office. The father did not dispute the calculations. The statement of arrears shows the father’s arrears at $18,673.32 as of July 7, 2025.

Part Three – Termination of support

3.1 The father’s position

[20] The father asked to terminate support for each child when they turned 18 years of age.

[21] D.M. turned 18 on March 19, 2022, and T.M. turned 18 on July 19, 2024.

3.2 Legal considerations

[22] Section 31 of the Family Law Act (the Act) sets out a parent’s obligation to support a child as follows:

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,
(a) is a minor;
(b) is enrolled in a full-time program of education; or
(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

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

[23] The onus of establishing the entitlement of an adult child to support is on the party seeking the support. See: Rebenchuk v. Rebenchuk, 2007 MBCA 22.

[24] The support payor does not have to provide effective notice to a support recipient if a child is no longer eligible for support. The support obligation terminates once the child is no longer eligible. See: Hoskins v. Magee, 2021 ONSC 6319.

3.3 Analysis

[25] The father testified that D.M. was in full-time attendance at high school after he turned 18, and continued his full-time education until the end of June 2023 when he was 19.

[26] The father stated that he remains in contact with both children. He said that D.M. has not returned to school since June 2023, is presently unemployed and has applied for jobs at a community centre and a supermarket. The court accepts his evidence.

[27] The court will terminate support for D.M. effective June 30, 2023.

[28] The father testified that T.M. completed high school in June 2024. He said she has not returned to school since then. He said that she is unemployed, although he has given her part-time work at some of his cleaning jobs. The court accepts his evidence.

[29] The court will terminate support for T.M. effective July 31, 2024.

3.4 Calculation of arrears owing based on termination dates

[30] The child support guideline table amount for one child, starting on July 1, 2023, based on the annual income of $38,400 imputed to the father in the existing order, was $340 each month.

[31] Support under the existing order accrued at $576 each month from July 1, 2023, until July 31, 2024. The father shall be credited with the difference of $3,068 ($576 - $340 x 13 months).

[32] The father shall also be credited with child support that has accrued since support for T.M. was terminated on July 31, 2024. This amounts to $6,912 ($576 each month x 12 months).

[33] The total credit for the father, based on the termination dates ordered by the court is $9,980 ($3,068 + $6,912). This leaves a balance of support owed of $8,693.32 ($18,673.32 - $9,980).

Part Four – Retroactive support

4.1 Father’s position and evidence

[34] The father asks to adjust his child support obligation back to November 1, 2020, in accordance with the annual income he reported to the Canada Revenue Agency.

[35] The father deposed that:
a) He has never earned the amount imputed to him in the existing order.
b) His lawyer talked him into agreeing to the income imputed to him in the existing order.
c) He lost his job in early 2021. He said his employer closed operations because of the pandemic.
d) He went on Employment Insurance for one year.
e) He has been on Ontario Works since his Employment Insurance ran out.
f) He hopes to work in the near future as a forklift operator.
g) His annual income since 2020 has been as follows:
2020 - $28,841
2021 - $27,842
2022 - $6,100
2023 - $5,496
2024 - $5,496

4.2 Legal considerations

[36] The father’s motion to change the support terms in the existing support order is governed by subsection 37 (2.1) of the Act.

[37] The Supreme Court of Canada set out the framework for deciding applications to decrease support retroactively at paragraph 113 in Colucci v. Colucci, 2021 SCC 24 as follows:

(1) The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.

(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.

(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.

(4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.

(5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[38] In Michel v. Graydon, 2020 SCC 24, 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.

[39] In Trang v. Trang, 2013 ONSC 1980, Justice Alex Pazaratz made the following observations about the challenges of changing a support order where the court imputed income:

51. When a court imputes income, that’s a determination of a fact. It’s not an estimate. It’s not a guess. It’s not a provisional order awaiting better disclosure, or further review. It’s a determination that the court had to calculate a number, because it didn’t feel it was appropriate to rely on – or wait for -- representations from the payor.
52. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:
    a. It is no longer necessary or appropriate to impute income. The payor’s representations as to income should now be accepted, even if they weren’t accepted before; or
    b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.
53. If “declared income” automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications – as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.
54. Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.
55. Imputed income matters. The reason why income had to be imputed matters.
56. If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring a motion to set aside the order based on mistake or misrepresentation.
57. But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct – and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court.

4.3 Has there been a material change in circumstances in the father’s income?

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

[41] The threshold for a person to establish a material change in circumstances in their income is fairly low. See: Retroactive Support after Colucci, by Professor Rollie Thompson, 40 CFLQ 61.

[42] Paragraph 1 of section 14 of the guidelines reads as follows:

Circumstances for variation

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

15. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

[43] The court finds that there was a material change in circumstances in the father’s annual income when he lost his job in March 2021, and he went on Employment Insurance.

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

[44] The second step in the Colucci framework is to determine the presumptive start date that support should be changed.

[45] The father acknowledged that he did not notify the mother that he was seeking a child support reduction until he served her with his motion to change materials on December 3, 2024, the date of formal notice. Here, the date of effective notice is the same date as formal notice. The presumptive date to change support is December 3, 2024 – after support had been terminated for both children.

4.5 Should the court depart from the presumptive start date?

[46] The third step in the Colucci framework is to determine whether the presumptive start date should be changed. The court has to consider factors such as delay, blameworthy conduct, the circumstances of the children and hardship.

4.5.1 Reasons for delay

[47] 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.

[48] The father did not provide an understandable reason for delay. He claimed in his amended motion to change that he did not come to court earlier because he was not aware he could request a change. This evidence was not credible. He had brought a motion to change in 2019 and succeeded in reducing arrears. He knew he could have asked to change the order. At the hearing, he gave a more credible answer. He did not want to engage with the mother.

4.5.2 Blameworthy conduct

[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] The father has engaged in blameworthy conduct as follows:
a) He breached the existing order by failing to provide the mother with the required annual financial disclosure. He did not provide her with any financial disclosure until December 3, 2024, when he served her with his motion to change materials.
b) He has not made a voluntary child support payment to the mother since the end of 2020. Any support collected by the Family Responsibility Office has been through federal diversions.

[52] The father’s failure to voluntarily pay any child support might have been more understandable if he was only earning income from Ontario Works. However, at trial the father acknowledged that he has also been earning cash income for other jobs he does for friends.

[53] The father was very vague about the details of these jobs. When asked about T.M.’s employment, he said that he sometimes took her to do cleaning jobs and paid her. He did not specify when he did these jobs and how much he or T.M. earned.

[54] The father also testified that he sometimes works for a friend who pays him $100 a day. At one point he said he was working for the friend 3 to 4 days a week. He then said this was sporadic work. He provided no details about when he worked and no documentary evidence about this employment or his income. He made no mention of this work in his affidavits for the hearing.

[55] The father has considerable experience working as a forklift operator, as a machine operator and in shipping and receiving. The court finds he is earning cash income he does not report to the Canada Revenue Agency, although it is unlikely at the same level imputed to him in the existing order. He should have been making voluntary child support payments to the mother. He preferred his own interests to the interests of the children.

[56] The court also considered that the mother engaged in blameworthy conduct by not notifying the Family Responsibility Office that the children were no longer entitled to child support.

4.5.3 The children’s circumstances

[57] The court received no evidence that the children’s circumstances were disadvantaged by the father’s failure to pay the court-ordered support.

4.5.4 Hardship

[58] 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.

[59] The father would suffer hardship if required to make immediate payment of the support arrears. However, any hardship to him can be addressed through a reasonable payment plan.

4.5.5 Determination of start date to change support

[60] Balancing these factors, the court finds it is fair to make a modest departure from the presumptive start date. The court will change the existing child support order starting on July 1, 2023 – the first day after support for D.M. terminated.

4.6 Quantification of support adjustment

[61] The final step in the Colucci framework is to quantify the change in support from July 1, 2023 until July 31, 2024, when support for T.M. terminated.

[62] The father submits that no child support should be paid during this time because his income was lower than what would be required to generate a support payment under the guidelines.

[63] However, the court does not accept the father’s representations about his income.

[64] Section 19 of the guidelines gives the court the authority to impute income to the father for support purposes. The court can impute income to a support payor it finds to be intentionally unemployed or underemployed. See: Drygala v. Pauli, 2002 ONCA 618.

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

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

[67] In assessing a payor’s ability to earn income, the court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living enjoyed during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson, 2006 ONCA 488.

[68] The receipt of social assistance benefits is not sufficient proof of one’s inability to work for support purposes. See: Tyrrell v. Tyrrell, 2017 ONSC 6499.

[69] The court has found that the father has been earning cash income in addition to his receipt of Ontario Works. It has also found that he has marketable job skills. He has been capable of earning more income than he claims he has earned. For support purposes, the court finds that the father has either been earning or has been capable of earning annual income of $18,000 since July 1, 2023.[2] The guidelines table amount for one child at this income is $137 each month.

[70] The father is entitled to a further support credit of $2,639. This is the difference between the accrued support of $340 each month for one child, based on an annual income of $38,400 and the reduced support amount of $137 each month, based on an annual income of $18,000, for a period of 13 months.

[71] This adjustment reduces the support arrears to $6,054.32 ($8,693.32 - $2,639).

Part Five – Arrears owed to the assignee

[72] The arrears owed to the assignee were accumulated prior to the existing order. The father’s claim to reduce those arrears lacks any merit and is dismissed.

Part Six – Payment of arrears

[73] The father may pay the arrears at $200 each month, starting on September 1, 2025. This will give him about two and one-half years to pay them. However, if he is more than 30 days late in making any payment, the entire amount of arrears then owing shall immediately become due and payable.

Part Seven – Conclusion

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

a) The existing order shall be changed as follows:
i) Child support for D.M. is terminated effective June 30, 2023.
ii) Starting on July 1, 2023, the father shall pay child support to the mother for T.M. in the amount of $137 each month. This is the guidelines table amount for one child, based on his annual imputed income of $18,000.
iii) Child support for T.M. is terminated effective July 31, 2024.

b) The father may pay the support arrears at $200 each month, starting on September 1, 2025. However, if he is more than 30 days late in making any payment, the entire amount of arrears then owing shall immediately become due and payable.

c) Nothing in this order precludes the Director of the Family Responsibility Office from collecting arrears from any government source (such as income tax or GST/HST refunds), lottery or prize winnings or inheritances.

d) The Director of the Family Responsibility Office is asked to adjust its records in accordance with this order. Based on the calculations in this decision the arrears should now be $6,054.32. However, this does not account for any arrears paid through federal diversions since July 7, 2025.

e) A support deduction order shall issue.

f) The balance of the father’s claims are dismissed.

[75] There is one other issue to address from the evidence. The father testified that T.M. plans to go back to school in September 2025. The court considered making an order that would revive the father’s child support obligation for T.M., starting on September 1, 2025. See: Rodriguez v. Bell, 2024 ONCJ 302. However, it chose not to do so as the mother did not participate in the case and did not claim this relief.

[76] The father should be aware that the mother may be able to successfully claim child support for T.M. if she returns to school full-time. The father testified he planned to assist funding T.M.’s education. He should keep detailed records of any amounts he pays for her in case the mother makes a support claim against him in the future.

Released: July 30, 2025

Justice Stanley B. Sherr

[1] This is set out in the father’s Form 23C sworn on August 27, 2020.
[2] This figure is inclusive of any gross-up of the father’s income arising from his failure to report cash income to the Canada Revenue Agency.