ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FC-03-1206-2
DATE: 2012-05-03

BETWEEN:

JANICE BENOIT Applicant – and – JAMES ROBERTS Respondent

Lawrence Pascoe, for the Applicant
Wendy E. Byrne, for the Respondent

HEARD: March 16, 2012 at Ottawa, Ontario

REASONS ON MOTION TO CHANGE

Madam Justice B. R. Warkentin

[ 1 ] The Applicant seeks a variation of the arbitration award made by Jon Snipper on March 29, 2006 and seeks retroactive child support in the amount of $36,108.40, together with ongoing child support and contributions to post-secondary expenses.

[ 2 ] The parties have two children, Krista Ruth Roberts born March 13, 1990 and Karling Nancy Roberts born on June 18, 1992. Both children are presently attending University, although Krista will graduate this spring.

[ 3 ] The parties separated in March 2002 and entered into a separation agreement in 2003.

[ 4 ] In 2006 they attended arbitration with Jon Snipper to address certain areas related to access to the children and child support. In 2006, both children resided primarily with the Applicant.

[ 5 ] The arbitrator made an award in which the Respondent was required to pay $1,000 per month in child support payable only during the 10 months of the school year, together with an additional $100 per month for extraordinary expenses for the 10 month period.

[ 6 ] This calculation was based upon the Respondent’s income of $66,790 in 2006. The Child Support Guideline amount was $998 a month.

[ 7 ] In February of 2007, the Respondent advised the Applicant that he had taken an early retirement from his employment and that his new income from his pension would be $46,000 per annum. The Respondent sought a reduction in child support from $1,000 to $660 per month but proposed to continue paying $100 per month for extraordinary expenses. He asked the Applicant to consent to the new child support commencing April 1, 2007 and asked her to send a letter to the Family Responsibility Office with this new agreement.

[ 8 ] The Applicant refused to consent to a reduction in child support because the arbitration award specifically addressed the possibility of the Respondent’s potential early retirement. In particular, the arbitrator indicated that “a retirement in his circumstances before age 60 would not reduce his child support obligations.” In February 2007 the Respondent was only 57 years of age.

[ 9 ] Throughout 2007, the Respondent continued to ask the Applicant to agree to a reduction in the quantum of child support. The Applicant refused to agree to his request.

[ 10 ] Shortly after his early retirement, the Respondent began working as a casual employee to his former employer. The Applicant knew that the Respondent had returned to work as a casual employee.

[ 11 ] In April 2010, Krista began residing primarily with the Respondent. Since April 2010, each party has had one child residing with them. In May 2010, the Respondent again sought a reduction in child support due to the split custody regime on grounds that this constituted a material change in circumstances. In addition, the Respondent sought that each party would pay the post-secondary expenses of the child in his or her care since both children were attending University. At the request of the Applicant, the Respondent then disclosed his income for the period of 2007 through to 2010 and subsequently his income in 2011.

[ 12 ] The Respondent’s income from 2007 through to 2011 was as follows:

2007 - $143,931 (includes the Respondent’s severance pay)
2008 - $96,506
2009 - $95,009
2010 - $92,358
2011 - $96,608

[ 13 ] The Applicant now seeks to vary the arbitration award by claiming retroactive child support for the years 2007 until 2010 when Krista began residing full-time with the Respondent, and a variation based on the parties’ respective incomes for a split custody regime as of May 2010. The Applicant also seeks that the parties share the children’s post-secondary expenses in proportion to their respective incomes.

[ 14 ] The Applicant claims that she did not seek income disclosure from the Respondent between 2007 and May 2010 when Krista began residing primarily with the Respondent because of the Respondent’s representations to her that his income had declined after his retirement. The Applicant admitted that she was aware that the Respondent began working casually after his retirement; however, she had no reason to believe that he was earning more than his prior full-time income and did not believe she was entitled to increased child support.

[ 15 ] The Applicant claims that she is now entitled to a recalculation of child support retroactive to 2007 due to blameworthy conduct on the part of the Respondent from 2007 onward. It is her position that the Respondent failed in his obligation to provide his income information to her and that he deliberately mislead her in 2007 when he advised her that his income had declined after his retirement.

[ 16 ] The issue is whether or not the Respondent is obligated to pay retroactive child support and if so, when would such retroactive payments commence? There is no dispute that the quantum of ongoing child support from May 2010 will be calculated as a set off given the split custody nature of the children's living arrangements. There is a dispute as to how the children’s ongoing post-secondary expenses should be attributed.

[ 17 ] It is noteworthy that the arbitrator made a finding that the Respondent pay child support in an amount that was essentially the same as the Child Support Guidelines [1] amount then in place on income of $66,790 albeit for only 10 months of the year.

[ 18 ] The arbitrator also specifically dealt with the possibility of the Respondent’s early retirement from his employment in that the Respondent was not entitled to a reduction in child support notwithstanding the acceptance of an early retirement date.

[ 19 ] It does not appear that anyone contemplated the Respondent would retire early and resume employment to such an extent that his income would be increased on average by close to one third of his prior full-time employment income.

[ 20 ] The Respondent denies any obligation to pay retroactive child support. He claims that the Applicant was well aware that he had returned to work on a casual basis and that his income included both his pension income and his income from employment. He claims that the Applicant never sought verification of his income until 2010 when Krista began residing primarily with him and that it would be unfair to provide her with retroactive child support before May 2010.

[ 21 ] On her behalf the Applicant’s counsel alleged the Respondent deliberately failed to disclose his income and that he used threats and intimidation in 2007 to attempt to obtain the Applicant’s consent to a reduction in child support based on a deliberate misstatement of his income in 2007. The Respondent then unilaterally stopped paying support to the Applicant in May 2010 when Krista began residing with him full-time.

[ 22 ] Because of the disparity in incomes between the parties, particularly until May 2010; had the Applicant sought a variation of child support in 2007 or later, she would have been entitled to an increase in child support based upon a material change in circumstances due to the Respondent’s increased gross income from his pension and from his employment.

[ 23 ] Counsel for both parties cited a variety of case law dealing with retroactive payments of child support. In particular, they both relied on the Supreme Court of Canada case of ( D.B S.) v, (S.R.G.) [2] . Mr. Justice Bastarache writing for the majority outlined a number of factors that a court should consider before awarding retroactive child support as follows:

a) Is there a reasonable excuse for why support was not sought earlier?
b) What was the conduct of the payor parent?
c) What are the circumstances of the children?
d) Would there be hardship occasioned by a retroactive award?

[ 24 ] In DBS , the Supreme Court of Canada determined that:

“…a recipient parent will generally lack a reasonable excuse where (s)he knew higher child support payments were warranted, but decided arbitrarily not to apply.”

[ 25 ] With respect to payment of retroactive awards, the Court found that:

“From a child’s perspective, a retroactive award is a poor substitute for past obligations not met. Recipient parents must act promptly and responsibly in monitoring the amount of child support paid…. Absent a reasonable excuse, uncorrected deficiencies on the part of the payor parent that are known to the recipient parent represent the failure of both parents to fulfill their obligations to their children.” (para.103)

[ 26 ] Regarding the conduct of the payor parent, the court should take an expansive view of what constitutes blameworthy conduct. This includes the deliberate hiding of pay increases from the recipient parent and conduct that was intended to intimidate a recipient parent from bringing an application for increased child support as both as potentially blameworthy conduct.

[ 27 ] Once a court finds that retroactive child support is owed, the retroactivity should commence from the date the recipient parent provided effective notice to the payor parent that the quantum of child support should be renegotiated or increased. Depending on the circumstances, the retroactive award of support might be made from a date more than three years before the date that effective notice was given.

[ 28 ] For example, where the payor parent is found to have engaged in blameworthy conduct, retroactive child support might be ordered for the entire period where an insufficient amount of support was paid.

[ 29 ] In the present case, the Applicant claims that the Respondent did engage in blameworthy conduct when he retired early almost immediately after the conclusion of the arbitration and the arbitrator’s award. He then used the fact of his reduced income due to his early retirement to attempt a reduction in child support. He attempted to elicit the Applicant's consent to this reduction for most of 2007, when he knew or ought to have known that his income was going to be substantially higher than the income he presented to the Applicant.

[ 30 ] The Applicant claimed she had no reason to doubt the Respondent’s apparent reduction in income after his early retirement. She knew he had retired early and notwithstanding she knew he was working as a casual employee she had no reason to believe his income had increased above the amount he earned at the time he was working full-time.

[ 31 ] The Applicant also claims that she provided notice to the Respondent of her intention to seek a variation of child support, including a retroactive claim for child support in May 2010 when Krista moved to the Respondent’s residence on a full-time basis, and the parties exchanged financial information. She asserts that she did not commence this Application until September 2011 because the parties were negotiating with the assistance of their respective counsel. She only commenced an application when those negotiations failed.

[ 32 ] On his behalf, the Respondent claimed he did not engage in blameworthy conduct and that there was no hardship to the Applicant by not receiving more child support than the amount awarded by the arbitrator in 2007. The Respondent claims the Applicant has not been forced to encroach on capital or to dip into savings in order to support the children.

[ 33 ] The Respondent noted that the arbitration award did not require the parties to exchange financial information without a written request, and that at no time did the Applicant make such a request of the Respondent even when he raised the issue of his income in February 2007 after his early retirement.

[ 34 ] It is not disputed that the Respondent paid the child support he owed regularly until May 2010 when Krista began to live primarily with him. The Respondent claims that a retroactive child support order now would encroach substantially on his savings for his imminent retirement given that he is currently 62 years of age.

[ 35 ] With respect to the children’s post-secondary expenses, the Respondent claims that each parent should be responsible for the expenses for the child in their care. It is noteworthy that the child in the Respondent’s care, Krista, began attending the University of Ottawa in September 2008 while residing with the Applicant. From September 2008 until April 2010, Krista resided at the Applicant's home for part of her studies and in residence for part of her studies. Until Krista began residing with the Respondent in April 2010, the Respondent did not contribute to Krista’s post-secondary expenses, except for the payments of child support which included $100.00 per month for the extraordinary expenses of both children.

[ 36 ] Krista finished her degree in April 2012 and is graduating this spring. In 2011, Krista began residing with her boyfriend in November 2011. The parties have agreed that Krista is no longer a child of the marriage for support purposes after April 2012.

[ 37 ] Karling attends McGill University in Montreal and requires more assistance for room and board, as well as travel to and from Ottawa.

[ 38 ] The Respondent claims that Karling and the Applicant chose McGill University without consultation with him when she could have received the same education in Ottawa and resided at home at considerably lower cost. He claims he is not obligated to contribute to the post-secondary education expenses above tuition and books since he was neither consulted nor did he consent to Karling attending school outside of the City of Ottawa. The arbitration award required consultation with respect to post-secondary educational expenses and the parties were supposed to encourage the children to complete their studies in Ottawa.

[ 39 ] Based upon the evidence presented in this Motion to Change, I am satisfied that it was the Respondent’s conduct that resulted in the Applicant’s failure to seek financial disclosure and then variation in child support at an earlier date. I do not accept the Respondent’s claims that a retroactive support order would be a financial hardship to him. The Respondent has no apparent debts with sizable investments.

[ 40 ] The Applicant had information about the Respondent’s income from employment in 2006, and she knew that he chose an early retirement from that employment in early 2007. It is logical that the Respondent's income would drop when he began to receive his pension. Additionally, the Respondent attempted on numerous occasions throughout 2007 to convince the Applicant to consent to a reduction in his child support obligation based on his alleged income of $46,000 per annum. He did this, notwithstanding that he in fact earned almost $144,000 in 2007 (including his severance pay).

[ 41 ] I find that the Respondent’s conduct in deliberately misleading the Applicant about his income amounts to blameworthy conduct. The Applicant had no reason to believe that the Respondent was earning substantially more money from casual employment and was entitled to rely on his representations to her that his income had declined after he retired. I therefore find that this is an appropriate case to award child support retroactively.

[ 42 ] I find that the appropriate period of retroactive support should extend back to May 1, 2007, a period of 3 years from the date Krista changed her residence from the Applicant’s home to the Respondent’s home and which triggered the Applicant’s request for income disclosure from the Respondent.

[ 43 ] Retroactive child support shall be limited to the amount payable under the Child Support Guidelines for 2 children based upon the Respondent’s gross income from all sources for the years 2007 through to April 30, 2010 (including the Respondent's severance pay), less the amount he paid for regular child support.

[ 44 ] Because the Applicant made no effort to seek a variation in child support when Krista commenced her post-secondary education in September 2008 when it was open to her to do so, I am not awarding retroactive child support for extraordinary expenses before May 1, 2010.

[ 45 ] From May 1, 2010, child support shall be calculated as for a split custody arrangement where one child resides with each parent based on the Child Support Guidelines until April 30, 2012 when Krista was no longer entitled to support because of the completion of her post-secondary education.

[ 46 ] With respect to extraordinary, post-secondary educational expenses from May 1, 2010 forward, the parties shall contribute to the post-secondary expenses of the children in proportion to their respective incomes. The fact that Karling attends University in Quebec rather than in Ottawa is not a sufficient ground to limit her entitlement to a reasonable contribution from the Respondent towards her expenses. I do not accept that the Respondent's claim that he should have been fully consulted if he was expected to contribute to Karling's post-secondary university expenses at McGill University in Montreal. The evidence indicated that the program of study she chose is somewhat different than the same program offered at the University of Ottawa and is more highly regarded.

[ 47 ] Both parties have sufficient financial means to assist their children in their educational objectives and Karling’s educational objectives were not unreasonable in all of the circumstances. The evidence did not indicate that the Respondent was somehow taken unawares by Karling's choice of school. The Respondent has a good relationship with both children and it is unlikely that he was not aware, despite a lack of formal consultation; that Karling had applied to McGill University. There was no evidence that he opposed her school choice; his only complaint was that he had not been consulted.

[ 48 ] With respect to the division of post-secondary expenses for inclusion as extraordinary expenses, these are limited to tuition, books, residence, meal plans or reasonable room and board, and transportation expenses for both children.

[ 49 ] Expenses in addition to tuition, books, residence, meal plan, or reasonable room and board, and transportation, should not be included as extraordinary expenses except for those truly extraordinary expenses that might occur. In that situation, there should be consultation between the parties before the expense is incurred. I am disallowing any claim for expenses that have been incurred in the past that do not fit within the delineated categories (for example, the cost of a new computer for Karling).

[ 50 ] If the parties cannot agree on the actual calculation of the retroactive and ongoing child support as ordered, they shall prepare written submissions regarding their respective positions for my determination.

[ 51 ] If the parties cannot agree on costs, they shall deliver written submissions on costs together with their bills of costs within 20 days of the date of this order. The submissions shall not exceed four pages, not including the bill of costs and any relevant offers to settle.

Madam Justice Bonnie R. Warkentin

Released: May 3, 2012

[1] Child Support Guidelines , O.Reg. 391/97, as amended

[2] ( D.B S.) v, (S.R.G.) , 2006 SCC 37 , [2006] 2 S.C.R. 231
https://www.canlii.org/en/ca/scc/doc/2006/2006scc37/2006scc37.html