Court File and Parties

Date: October 20, 2025

Court File No.: D45927/25

Ontario Court of Justice

Between:

Anthea Ryan Acting in Person Applicant

- and -

Kurn Samuels Not Attending and In Default Respondent

Heard: June 20 and October 17, 2025

Justice: S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The Family Orders and Agreements Enforcement Assistance Act (Canada) (the Act) is a new and useful tool for litigants and courts to obtain financial information about support payors to accurately assess their income and support obligations. The Act was of considerable assistance for the applicant (the mother) and the court in this uncontested hearing that was about the respondent's (the father's) child support obligations for the parties' two children (the children). The children are 16 and 15 years old.

[2] The mother, in her trial affidavit, sought child support from the father retroactive to January 1, 2017. She asked the court to impute his annual income at $65,000 for this purpose.

[3] The mother issued her application on March 10, 2025. It was served on the father the following day.

[4] The father has not attended at court, filed an Answer/Claim or served and filed any financial disclosure.

[5] On June 20, 2025, the court found the father in default and started this uncontested hearing. The mother had little knowledge of the father's income since 2017. She knew that he had consistently worked as a warehouse supervisor.

[6] The court adjourned the hearing and gave the mother leave to move under the Act for production of the father's income tax returns and a list of his employers since 2017. It made a temporary support order that the father pay her child support of $1,139 each month, starting on February 1, 2025, based on an imputed annual income to him of $75,000.

[7] The mother brought her motion under the Act and on July 14, 2025, the court authorized the court official, pursuant to section 10 of the Act, to make an application to the Minister of Justice Canada (the Minister) under section 12 of the Act to search for and release to the court the following information that can be found in federal information banks designated under section 2 of the Release of Information for Family Orders and Agreements Enforcement Assistance Regulations SOR/2023-125:

a) The name and address of the father's employers.

b) The information set out in the father's 2017 to 2024 Income Tax and Benefit Returns, including the schedules, other than his social insurance number.

[8] The Minister responded promptly. On August 8, 2025, the court received the father's 2017 to 2024 income tax returns, together with a list of his employers. The court made the following orders the same day:

1. Pursuant to subsection 13 (2) of the Act, the information received by the court official and subsequently given to the court shall be sealed and kept in a location to which the public has no access.

2. Pursuant to subsection 13 (3) of the Act, the information released to the court official shall be provided by the court to the mother. The mother shall only use the information for the purposes of this court case and not disclose any of it to any other person.

[9] The uncontested hearing resumed on October 17, 2025. The mother, after reviewing the disclosure from the Minister, changed her retroactive support claim, asking for it to start on January 1, 2021, and to be in accordance with the annual employment income set out in the father's income tax returns. The mother agreed that, based on the father's income set out in his income tax returns for 2017 to 2020, he had paid her child support close to the Child Support Guidelines (the guidelines) table amounts.

[10] The court read the mother's affidavits sworn on May 9 and June 5, 2025. It also heard oral evidence from her.

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

a) What is the presumptive start date for child support? In determining this date, the court must determine the dates of formal notice and effective notice of the mother's claim for support.

b) Should the court depart from the presumptive start date, and if so, when should support start?

c) How much child support should the father pay the mother for each year he is required to pay support?

d) What are the support arrears owing?

Part Two – Brief Background Facts

[12] The parties married in May 2005. They separated on February 1, 2017. They are now divorced. Child support was not addressed in the divorce proceeding.

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

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

[15] The mother is employed by an administrative tribunal. She testified that her annual income is about $97,000.

[16] The father paid the mother monthly child support of $760 starting on February 1, 2017. He stopped paying her child support after he made his January 2025 payment. The mother issued her application for child support shortly after.

[17] The father has paid no further child support to the mother since she issued this application.

Part Three – Start Date for Child Support

3.1 Legal Considerations

[18] Support accrued since the date the mother served her application on the father on March 11, 2025, is prospective support and is presumptively payable. See: Mackinnon v. Mackinnon, 2005 13 R.F.L. (6th) 331 (Ont. C.A.); Balian v. Balian, 2025 ONSC 4128. The support claimed by the mother before that date requires a retroactive support analysis.

[19] 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;

[20] 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.

[21] 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.

[22] 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 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; Mohamoud v. Farah, 2023 ONCJ 103.

[23] Retroactive child support simply holds payors to their existing (and unfulfilled) support obligations. See: Michel v. Graydon, 2020 SCC 24, at par. 25.

[24] 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.

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

[26] In Michel, at paragraph 121, the Supreme Court of Canada emphasized the importance of support payors meeting their support obligations and commented that the neglect or underpayment of support is strongly connected to child poverty and female poverty.

3.2 What is the Presumptive Start Date to Change Support?

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

[28] 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.

[29] The mother testified that she first broached the issue of the father paying her more child support in 2018. He told her he could not afford this – he was only prepared to pay her $760 each month. She said that she has often requested more support from the father and always received the same response.

[30] The court finds that the effective date of notice is February 1, 2018.

[31] Colucci sets out that the presumptive start date for support cannot be more than three years from the date of formal notice. Here, the mother gave effective notice to the father more than three years before the date of formal notice of March 11, 2025 (the date the father was served with this application). Accordingly, the presumptive start date for support is March 11, 2022.

3.3 Should the Court Depart from the Presumptive Start Date?

[32] The second step in the Colucci framework is to determine if the court should depart from the presumptive start date. The court will review the legal considerations and evidence regarding delay, conduct, the circumstances of the children and hardship below.

3.3.1 Reasons for Delay

[33] 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.

[34] 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.

[35] 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.

[36] In Michel, the court, at paragraph 86, set out what might be understandable reasons for delay in a support recipient coming to court as follows:

a) Fear of reprisal/violence from the other parent.

b) Prohibitive costs of litigation or fear of protracted litigation.

c) Lack of information or misinformation over the payor parent's income.

d) Fear of counter-application for custody.

e) The payor leaving the jurisdiction or the recipient unable to contact the payor parent.

f) Illness/disability of a child or the custodian.

g) Lack of emotional means.

h) Wanting the child and the payor to maintain a positive relationship or avoid the child's involvement.

i) Ongoing discussions in view of reconciliation, settlement negotiations or mediation.

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

[37] The court finds that the mother provided understandable reasons for her delay in coming to court, including:

a) The father refused to provide her with details of his income.

b) She was on good terms with the father and did not want to compromise that relationship. She worried about the impact on the children if there was conflict between her and the father because she brought an application for child support. She only did this once the father cut off his support payments to her.

3.3.2 Blameworthy Conduct

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

[39] 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.

[40] 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. See: Colucci, par. 114.

[41] The failure of a payor to disclose actual income, a fact within the knowledge of the payor, is blameworthy conduct that eliminates any need to protect the payor's interest in certainty. See: Michel, par. 34.

[42] The father paid child support of $760 each month, starting on February 1, 2017, until his last payment in January 2025. This is the guidelines table amount for two children based on an annual income of $50,300.

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

a) He did not provide the mother with any income information, even after this case started. When asked for this information, he told the mother that he did not have to give it to her because they were divorced.

b) He did not increase his child support payments in accordance with his increases in income starting in 2021. His annual employment income was $57,657 in 2021 and is now over $75,000.

c) He stopped paying any child support after the January 2025 payment.

3.3.3 Circumstances of the Children

[44] The children's circumstances have been disadvantaged due to the father's failure to pay adequate support. The mother testified that she can no longer afford to pay for a tutor and violin lessons for her daughter. She said she cannot afford to travel on vacation with the children.

3.3.4 Hardship

[45] 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.

[46] 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.

[47] There is no evidence that a retroactive support order will cause the father hardship. The mother deposed that he drives a car she believes is worth $100,000.

[48] The mother will suffer hardship if she does not receive retroactive support.

3.3.5 The Start Date for Support

[49] The court finds it is fair to depart from the presumptive start date in these circumstances and will start its child support order on January 1, 2021.

Part Four – Quantification of Support and Arrears

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

[51] The father earned employment income of $57,657 in 2021. The monthly guidelines table amount for two children based on this income is $879.

[52] The father earned employment income of $53,056 in 2022. The monthly guidelines table amount for two children at this income is $808.

[53] The father earned employment income of $69,177 in 2023. The monthly guidelines table amount for two children at this income is $1,053.

[54] The father earned employment income of $75,485 in 2024. The monthly guidelines table amount for two children at this income is $1,146.

[55] The court has no information about the father's 2025 income. It will use his 2024 employment income for the purposes of this analysis.

[56] The guidelines table amounts changed effective October 1, 2025. The monthly guidelines table amount for two children at this income is now $1,162.

[57] The father declared small business losses in his income tax returns in most years between 2018 and 2022. The court has excluded those losses from its income analysis for 2021 and 2022. The father has not participated in this case and explained those losses. It makes little sense that he would have continued his business that long if it was really losing money. A logical inference is that he was using this business to reduce his income tax liability. He stopped declaring those losses (or any business income) in 2023.

[58] The father's child support arrears between 2021 and 2024 are $10,152, calculated as follows:

Year	Calculation	Amount
2021	$879 accrued - $760 paid x 12 months	$1,428
2022	$808 accrued - $760 paid x 12 months	$576
2023	$1,053 accrued - $760 paid x 12 months	$3,516
2024	$1,146 accrued - $760 paid x 12 months	$4,632
Total		$10,152

[59] The father's child support arrears to date in 2025 are $10,716, calculated as follows:

Period	Calculation	Amount
January - September 2025	$1,146 x 9 months	$10,314
Less: Payment	- $760 paid	($760)
Subtotal		$9,554
October 2025	$1,162 x 1 month	$1,162
Total		$10,716

[60] The father owes the mother child support arrears of $20,868 ($10,152 plus $10,716).

Part Five – Costs

[61] The mother seeks costs of $3,500 from the father.

[62] The mother was the successful party in this case. The presumption set out in subrule 24 (3) of the Family Law Rules (all references in this decision to rules are to the Family Law Rules) that she is entitled to costs was not rebutted.

[63] Costs awards are discretionary. Two important principles in exercising discretion are reasonableness and proportionality. See: Beaver v. Hill, 2018 ONCA 840.

[64] Justice George Czutrin reviewed considerations for determining costs for self-represented litigants in Jordan v. Stewart, 2013 ONSC 5037 as follows:

a) A self-represented litigant does not have an automatic right to recover costs. The matter remains fully within the discretion of the trial judge. Moreover, self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer to conduct the litigation, and that as a result, they incurred an opportunity cost by foregoing remunerative activity.

b) Parties who litigate against a self-represented person should not be able to ignore the potential for costs. The court retains the discretion to fashion an award of costs that is fair and reasonable in the circumstances of the case before it.

c) It is near impossible to come up with an objective way of fixing an in-person party's hourly rate or the amount of time they spent, not at the court, doing what we might otherwise consider lawyer's work.

d) Ultimately, the overriding principle in fixing costs is "reasonableness".

e) Courts addressing costs should consider Bills of Costs certified by lawyers who have provided assistance, even if not on the record throughout the case.

[65] Justice Laura Fryer added the following considerations in Browne v. Cerasa, 2018 ONSC 2242:

a) Determination of costs for self-represented litigants should take into account all of the objectives which costs orders should promote. Rules 18 and 24 apply. Otherwise the resulting amount can render the entitlement to costs illusory; undermine access to justice by self-represented litigants; and frustrate the administration of justice.

b) If a self-represented litigant, in performing the tasks that would normally have been performed by a lawyer, lost the opportunity to earn income elsewhere, this may be a relevant factor. But costs for self-represented parties are not the same as damages for lost income. Remunerative loss is not a "condition precedent" to an award for costs.

c) To require proof of lost income would disqualify litigants who are homemakers, retirees, students, unemployed, unemployable and disabled; and deprive courts of a tool required re administration of justice.

d) Lost income may be one measure. But even if no income was lost, the self-represented party's allocation of time spent working on the case may still represent value. The fact that a self-represented litigant is not a lawyer who charges a standard and commonly accepted hourly rate makes it more difficult – but not impossible – to assess their costs. However, the difficulty in valuing the time and effort of the lay litigant is not a good reason to decline to value it.

e) An applicable hourly rate should be taken into account when quantifying even a self-represented lay litigant's costs. But the appropriate hourly rate, once determined, is only one of several factors to be considered.

f) In considering the hourly rate, the court should consider what the lay litigant's reasonable expectations were as to the costs he or she would pay if unsuccessful.

g) As with counsel, the appropriate hourly rate may be affected by the level of indemnification or recovery deemed to be appropriate, given all of the rule 18 and 24 considerations.

[66] Subrule 24 (14) reads as follows:

24 (14) In setting the amount of costs, the court shall consider,

a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party's behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[67] The court may award elevated costs where one party's conduct has been unreasonable. See: Barrett v. Watson, 2024 ONSC 1118; Houston v. Houston, 2025 ONSC 2824.

[68] In determining the appropriate quantum, the court should consider the amount that the unsuccessful party could reasonably have expected to pay in the event of lack of success in the litigation. See: Arthur v. Arthur, 2019 ONSC 938.

[69] The court will order the father to pay costs of $3,500 to the mother for the following reasons:

a) She incurred legal fees of $1,582 to assist her with preparing one of her trial affidavits.

b) The costs she claims are reasonable and proportionate.

c) The case was important for the mother. It was made more complex and difficult due to the failure of the father to provide any financial disclosure.

d) She had to miss several days of work to prepare her court material and attend at court. She had to file a motion under the Act for production of the father's income tax returns.

e) She acted reasonably throughout this case.

f) The father did not act reasonably. He failed to provide any financial disclosure. He has not paid any child support to the mother since January 2025.

g) The father should have expected to pay the costs that are being ordered.

h) The father can afford to pay these costs.

[70] The mother seeks an order that her costs be payable as support and enforced as an incident of support by the Director pursuant to clause 1 (1) (g) of the Family Responsibility and Support Arrears Enforcement Act. This will be ordered, as the entire case related to her obtaining a child support order.

Part Six – Conclusion

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

a) The father owes the mother $20,868 for child support arrears, as calculated in this decision.

b) The father shall pay the mother ongoing child support of $1,162 each month, starting on November 1, 2025. This is the guidelines table amount for two children, based on his imputed annual income of $75,485.

c) The father shall provide the mother with his complete income tax returns and notices of assessment by June 30th each year.

d) Pursuant to subsection 13 (3) of the Act, the mother shall only use the information provided to the court by the Minister for the purposes of this court case, and any subsequent motion to change this order and shall not disclose any of it to any other person.

e) The father shall immediately pay the mother's costs fixed in the amount of $3,500, inclusive of fees, disbursements and HST.

f) This costs award is a support order within the meaning of clause 1 (1) (g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, and as such, it is enforceable by the Director of the Family Responsibility Office.

g) A support deduction order will be issued.

Released: October 20, 2025

Justice Stanley B. Sherr

Footnotes

[1] Section 10 of the Act reads as follows:

Authorization

10 A court seized of a valid application under section 7 may make an order in writing authorizing an official of the court to make an application under section 12, if the court is satisfied,

(a) that the sole purpose of the application is to obtain information for the establishment or variation of a support provision or the enforcement of a family provision;

(b) that the order is not likely to jeopardize the safety or security of any person; and

(c) in the case of an ex parte application, that the steps referred to in paragraph 8(2)(a) or paragraph 9 (2) (a), as the case may be, have been taken.

[2] Section 12 of the Act reads as follows:

Application for release of information

12 (1) An official who is authorized to do so under section 10 may apply to the Minister, in the time and manner prescribed by the regulations, to have the information banks searched in order to release the information prescribed by the regulations to the official.

Marginal note: Supporting documents

(2) The application must be accompanied by a copy of the order made under section 10 that authorizes the making of the application.

[3] Section 13 of the Act reads as follows:

Information given to court

13 (1) If information is released under this Part to an official who is authorized under section 10 to apply for the release under section 12, the official shall give the information to the court that granted the authorization.

Marginal note: Sealing of information

(2) The information received by the official and subsequently given to the court shall be sealed and kept in a location to which the public has no access.

Marginal note: Disclosure of information

(3) The court may, for the purpose of establishing or varying a support provision or enforcing a family provision, disclose the information to any person, service or body or official of the court that it considers appropriate and may make any order to protect the confidentiality of the information.

[4] 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.

[5] Unfortunately, the T1 General Returns provided by the Minister did not include schedules. It would have been helpful for the court to review the father's Statements of Business or Professional Activities.