Marshall v. Russell
DATE: February 3, 2025
COURT FILE NO.: D30976/19
COURT: Ontario Court of Justice
HEARD: January 31, 2025
JUDGE: Justice Stanley B. Sherr
Parties
Applicant:
Nasha Dyian Marshall
Acting in Person
Respondent:
Jason Russell
Acting in Person
Reasons for Decision
Part One – Introduction
[1] This was the hearing of the respondent’s (the father’s) motion to change the child support terms contained in the final order of the court dated June 10, 2021 (the existing order).
[2] The existing order was made after a trial. The father was ordered to pay the applicant (the mother) child support of $1,420 each month for their two children (the children), starting on April 1, 2019, based on an assessed annual income of $95,822.
[3] In its oral reasons for decision, the court made the following findings of fact:
a) The father had failed to pay child support in accordance with the Child Support Guidelines (the guidelines).
b) The father had not kept the mother informed of his annual income.
c) The father did not provide complete or timely financial disclosure. He failed to provide his notices of assessment for 2019 and 2020.
d) The father represented his 2020 income was $87,781.
e) The father did not come close to meeting his onus to show the guidelines table amount would cause him undue hardship, pursuant to section 10 of the guidelines. The father has a child with another partner.
f) The father had perpetrated family violence against the mother.
[4] On June 11, 2021, the court ordered the father to pay the mother’s costs of the trial, fixed at $4,000. The court found he had acted unreasonably by failing to provide financial disclosure ordered by the court. See: Marshall v. Russell, 2021 ONCJ 329.
[5] The father seeks to change child support in accordance with his declared annual income to the Canada Revenue Agency. He said he was fired in 2022 and suffered a significant reduction in income.
[6] The mother asks that the father’s motion to change be dismissed.
[7] The court relied on the father’s motion to change, the mother’s response to motion to change and the father’s financial statement. At the hearing, the court permitted the father to file further documentation and permitted both parties to give additional oral evidence.
[8] The issues for this court to determine are:
a) What, if any, income should be imputed to the father, for the purpose of this support analysis?
b) Based on the court’s assessment of the father’s income, has there been a material change in circumstances that warrants changing child support?
c) If so, what is the presumptive start date that child support should be changed?
d) Is it fair in these circumstances to depart from the presumptive start date, and if so to when?
e) If the court orders that support should be changed, what support should be paid for each year from the start date chosen by the court?
Part Two – Brief background facts
[9] The father is 36 years old. The mother is 37 years old.
[10] The parties resided together off and on from 2015 until March 2019.
[11] The children are 11 and 9 years old. They have always lived with the mother.
[12] The mother was granted final decision-making responsibility for the children on August 4, 2020.
[13] On June 10, 2021, a final order was made for final parenting time between the father and the children.
[14] The father issued this motion to change on March 6, 2024.
[15] The mother filed her response to motion to change on August 6, 2024.
[16] At a case conference held on November 8, 2024, the father was given leave to amend his motion to change to seek changes to the existing parenting order. He did not do this. The mother was also given leave to amend her response to motion to change to seek a contribution to the children’s special and extraordinary expenses pursuant to section 7 of the guidelines. She did not do this.
[17] The father was ordered at the case conference to serve and file within 30 days:
a) His complete 2022 income tax return, including his Statement of Business or Professional Activities.
b) Copies of all his business and personal bank account and credit card statements since January 1, 2022.
c) His Record of Employment from 2022.
d) An updated financial statement.
e) Any documentation setting out when he first sought a reduction in support from the mother.
[18] The father produced none of this disclosure.
Part Three – Legal considerations for requests to retroactively decrease child support
[19] The father’s motion to change support is governed by subsection 37(2.1) of the Family Law Act, which reads as follows:
Powers of court: child support
(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,
(a) discharge, vary or suspend a term of the order, prospectively or retroactively;
(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and
(c) make any other order for the support of a child that the court could make on an application under section 33.
[20] The Supreme Court of Canada set out the framework for deciding applications to decrease support retroactively at paragraph 113 in Colucci 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.
[21] In Michel v. Graydon, supra, 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.
Part Four – What, if any, income should be imputed to the father?
4.1 The father’s evidence
[22] If the court accepts the father’s evidence that he had a significant reduction in his income in 2022, due to circumstances beyond his control, this will constitute a material change in circumstances.
[23] If the court rejects the father’s evidence and imputes income to him at the level of income attributed to him in the existing order, he will not meet the threshold test to change child support.
[24] The father produced his 2020 notice of assessment. It showed that he earned $121,695 that year. He did not produce this notice of assessment at the trial in 2021. He represented at that trial that his 2020 income had been $87,781. He had been dishonest with the court.
[25] The father said he was fired by his employer in February 2022. He did not provide his Record of Employment ordered by the court. At trial, he provided a letter from his employer. It was sparse. It reads as follows:
Please be advised that Mr. Jason Russell was dismissed from Canpar Express on February 10, 2022 and reinstated on December 12, 2022.
[26] The father said he was “dismissed for Covid”.
[27] The father filed his 2022 notice of assessment. It showed income of $61,516 in 2022.
[28] The father filed his 2023 notice of assessment at the hearing. It showed income of $93,408 in 2023.
[29] The father did not file any evidence of his 2024 or 2025 income. He said he is still working full-time for Canpar Express and earning about the same income that he earned in 2023.
[30] The father said he was suspended for eight days in 2024 for making a mistake on the job.
4.2 Legal considerations for imputing income
[31] Section 19 of the guidelines permits the court to impute income to a party as it considers appropriate.
[32] The jurisprudence for imputation of income sets out the following:
a) 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 obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See: Drygala v. Pauli, 2002 ONCA 41868, [2002] O.J. No. 3731 (Ont. C.A.).
b) 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:
i) Is the party intentionally under-employed or unemployed?
ii) If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs, the needs of the child or reasonable health needs?
iii) If not, what income is appropriately imputed?
c) The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552 (Ont. C.A.). However, in Graham v. Bruto, 2008 ONCA 260, the court inferred that the failure of the payor to properly disclose would mitigate the obligation of the recipient to provide an evidentiary basis to impute income.
d) Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position they are taking. See: Lo v. Lo, 2011 ONSC 7663; Charron v. Carriere, 2016 ONSC 4719.
e) A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See Whelan v. O’Connor, 2006 ONSC 13554, [2006] O.J. No. 1660 (Ont. Fam. Ct.).
f) The self-employed have an inherent obligation to put forward not only adequate, but comprehensive records of income and expenses, from which the recipient can draw conclusions and the amount of child support can be established. See: Meade v. Meade, 2002 ONSC 2806, 31 R.F.L. (5th) 88 (SCJ). This includes the obligation to present information in a user-friendly fashion. A recipient should not have to incur the expense to understand it. See: Reyes v. Rollo, 2001 ONSC 28260.
g) 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. See: Thompson v. Gilchrist, 2012 ONSC 4137; DePace v. Michienzi, 2000 ONSC 22560, [2000] O.J. No. 453 (Ont. Fam. Ct.).
h) 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 26573.
i) 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.
j) 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. See: Szitas v. Szitas, 2012 ONSC 1548; Woofenden v. Woofenden, 2018 ONSC 4583.
[33] Courts have considerable discretion to impute income to persons who lose their job due to their own conduct. See: Tillmans v. Tillmans, 2014 ONSC 6773. This includes the amount to impute to them. See: Gordon v. Wilkins, 2020 ONCJ 115.
[34] Courts have found it appropriate to impute income at the level a person was earning before they unreasonably left a job. See: Thompson v. Gilchrest, 2012 ONSC 4137; Lindsay v. Jeffrey, 2014 ONCJ 1; McAlister v. Dunkley, 2022 ONCJ 71; Daciuk v. Daciuk, 2023 ONSC 70.
4.3 Assessment of the father’s evidence
[35] The father was not a credible witness. The court rejects his evidence that he was unemployed for reasons beyond his control.
[36] The father has been dishonest with the court. At the first trial, he failed to comply with financial disclosure orders and misrepresented his 2020 income to obtain an advantage.
[37] At this trial, he did not comply with any aspect of the court’s financial disclosure order.
[38] It appears the father was fired in 2022 due to his conduct. The father provided no evidence that this dismissal was unjustified. The children should not have to bear the cost of his actions.
[39] The father said he was self-employed during 2022. He provided no meaningful evidence of income he earned from his business in 2022, despite a court order to do so. An adverse inference is drawn against him.
[40] The court finds that the father either earned, or was capable of earning in 2022, the level of income imputed to him in the existing order. It finds he has been earning or has been capable of earning annual income of $95,822 since the existing order was made.
[41] The father led no evidence to show that he meets the test for undue hardship, as set out in section 10 of the guidelines.
4.4 Application of the Colucci framework
[42] The court finds that the father has not met the threshold test set out in Colucci of establishing a material change in circumstances. The father failed to provide proof of his 2024 or 2025 income. The small differential in his 2023 income, compared to the amount assessed to him in the existing order, is more than offset by the fact that the court order for child support for 2020 was much lower than it should have been due to his misrepresentations to the mother and the court.
[43] The father’s motion to change is dismissed.
[44] In the event this court is wrong, and there was a material change in the father’s income in 2022, the court would still dismiss his motion to change for the following reasons:
a) He has still not provided meaningful financial disclosure to the mother for her to assess his claim. He has not provided any evidence of his 2024 or 2025 income. He did not comply with court orders to provide meaningful disclosure of his income since 2022. The presumptive start date to change support is the date of trial, at the earliest.
b) He provided no basis to depart from the presumptive start date. He did not ask the mother to decrease support until he issued his motion to change. He did not explain his delay. He has engaged in blameworthy conduct by misrepresenting his income to the court and by not providing meaningful financial disclosure. He did not provide evidence of hardship. The mother described how she has been struggling to meet the children’s needs.
c) His current income is essentially the same as the amount assessed to him in the existing order.
d) The father significantly underpaid child support in 2020. This more than offsets any reduction in child support he might have obtained for 2022. It would not be fair to the mother to only adjust support for 2022.
Part Five – Should the father be required to obtain leave before he brings another motion to change child support?
[45] The Ontario Court of Justice has jurisdiction to impose a term requiring leave to bring a motion to change under the Family Law Act. The jurisdiction is under subrules 14(21), 15(27), 1(6), rule 2, and by importing 37.16 of the Rules of Civil Procedure through subrule 1(7). See: Tiveron v. Collins, 2017 O.J. No. 2989 (OCA); Guma v. Nedelcu, 2019 ONSC 3429; Watson v. Watson, 2023 ONCJ 435, per Justice Carole Curtis; Obitulata-Ugwu v. Ugwu, 2024 ONCJ 586.
[46] In W.H.C. v. W.C.M.C., 2024 ONCJ 327, this court required leave to bring any future proceedings where the father had unpaid costs orders and had acted unreasonably in both the original application and on the motion to change.
[47] The court finds this is an appropriate case to require the father to first obtain leave of the court before he can bring another motion to change child support. He misrepresented his income in the first court proceeding. In both court proceedings, he failed to comply with court orders. He has put the mother through unnecessary aggravation.
Part Six – Conclusion
[48] An order shall go as follows:
a) The father’s motion to change the existing order is dismissed.
b) The father requires leave of the court before he can bring another motion to change child support.
[49] The mother advised the court she is not seeking costs. The father should consider himself fortunate she is being so reasonable.
Released: February 3, 2025
Justice Stanley B. Sherr