Citation: Adimibe v. Adimibe, 2015 ONSC 7520

OSHAWA COURT FILE NO.: FC 09 511

DATE: 2015-12-02

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Chuks Adimibe Applicant

– and –

Patricia Adimibe Respondent

COUNSEL:

Paul Krumeh, for the Applicant

Self-Represented, for the Respondent

HEARD: November 24, 2015

REASONS FOR JUDGMENT

NICHOLSON J.:

Background

[1] The parties were married on May 16, 1996, and separated on September 3, 2005. Two children were born of the relationship: Chuka Junior Adimibe who is now 17, and Destiny Chineye Adimibe who is now 12 years of age. The Applicant father commenced this application in March 2009. At that time he sought two orders under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.): a divorce and an order that he pay child support for the children of the marriage. He clearly desired at this point in time to formalize his legal obligation to support the children.

[2] With the assistance of counsel, the Respondent mother filed her answer to the application on April 13, 2009. At that time she did not seek an order for retroactive support. It was not until she filed her amended answer on June 6, 2011, that she included her claim for retroactive support. Her answer also included claims for various other relief including ongoing child support and property issues; all of these issues have now been resolved. The only issue to be determined in this trial is whether retroactive child support should be awarded from the date of separation in 2005 until the court order for child support in 2009.

[3] The theory of the Applicant father is that the Respondent mother was content with the manner in which he was supporting the children from the date of separation in 2005 until he brought his application for divorce in 2009. He contends that the Respondent’s claim for retroactive support was purely vindictive in response to him communicating to her his intention to obtain a divorce for the purpose of remarriage.

[4] The Respondent mother contends that although the Applicant father was contributing to various and sundry expenses from the date of separation, his contribution fell far short of the legal obligation for child support and s. 7 extraordinary expenses as outlined in the Child Support Guidelines, O. Reg. 391/97. According to the Respondent mother the shortfall totals $46,254. She concedes that the Applicant father made various payments totaling approximately $11,000 leaving approximately $36,000 of retroactive support owing to her.

[5] The temporary order for child support was made by this court in 2009 and adjustments were made to that order which became final in 2014. The Respondent mother claims that the Applicant father is behind in his payments of that support order by approximately $3,000. Enforcement of the court ordered support is within the jurisdiction of the Family Responsibility Office and will not be addressed in this order.

The Law

[6] The Supreme Court of Canada outlined the factors that a court should take into account when dealing with retroactive child support applications in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231. Briefly, there are four points that the court raised:

1. Reasonable excuse for why support not considered earlier (at paras. 100-104);

2. Conduct of the payor parent (at paras. 105-109);

3. Circumstances of the child (at paras. 110-113); and,

4. Hardship occasioned by the retroactive order (at paras. 114-116).

[7] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to take a holistic look at all of the relevant circumstances in front of it. Furthermore, the court in D.B.S. noted that the payor’s “interest in certainty must be balanced with the need for fairness and flexibility”, at para. 133.

[8] Once a court decides to make a retroactive award, it must determine the amount. This decision is comprised of two elements, which the court in D.B.S. laid out at para. 117. To begin with, “the court must decide the date to which the award should be retroactive, and second, the court must decide the amount of support that would adequately quantify the payor parent’s deficient obligations during that time.”

[9] The court further stated, at para. 5, that where ordered, an award should generally be retroactive to the date that the recipient gave the payor effective notice of his or her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility. The exception is where there is blameworthy conduct.

[10] Effective notice is defined, at para. 121, 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 re-negotiated.” To satisfy these requirements, “all that is required is for the subject to be broached. Once that has occurred, the payor can no longer assume that the status quo is fair”.

[11] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legal action should be contemplated. The court noted, at para. 123, that “[a] prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past.”

[12] A court order is presumptively valid when assessing conduct. However, the larger the difference between the order and what should be paid, the less reasonable it becomes to rely upon it, as the court in D.B.S. held at para. 65.

[13] The court was careful to note, at para. 97, that retroactive awards are not exceptional. They can always be avoided by proper payment.

The Analysis

Has the Respondent wife provided a reasonable excuse for why support was not considered earlier?

[14] In response to my question as to why she did not bring her claim for child support before the Applicant father brought his application for divorce, the Respondent mother advised that she had hoped the parties might reconcile, and also hoped that the father would step up and provide appropriate support. She also testified that she knew she could always seek back support from the father in the future.

[15] Subsequently during cross examination she provided a further explanation: she was unaware of her legal rights until she started to attend school in Canada. She acknowledged that she had received a master’s degree in Public Relations in Nigeria before she came to North America. In Canada she also pursued and completed a Master of Social Work. She claims that it was not until she received her Canadian education that she fully understand her right to receive child support under Ontario law.

[16] The Respondent mother did not give clear evidence that she ever formally notified the Applicant father that she wanted him to pay more child support then he was paying. She simply stated that she hoped he would pay more to her and maintained that she could always revisit the past support in the future. She did clearly testify that she had hoped the parties would reconcile following separation. How long she maintained this hope is not clear. The Applicant father testified that the Respondent mother attended his home frequently post-separation with the children and that the family even spent a Christmas together post-separation.

Conduct of the payor parent

[17] Since the date of separation the Applicant father has always contributed in some fashion towards the expenses of the children. He filed as exhibits copies of cheques and receipts showing a regular pattern of contribution. In addition, he gave testimony that he had contributed other amounts of support that he could not document given the length of time since separation. Furthermore, he testified that he purchased toys and equipment for the children over the years. He also testified that he personally investigated and registered the children for various extracurricular activities including soccer and math tutoring. He testified that he paid the full cost of these activities. The Respondent mother disputes that the father paid for the entire cost of these activities, but she does not dispute that he contributed towards them. The mother in fact concedes in her evidence that the father contributed to daycare expenses, swimming lessons, soccer, and tutoring for math and French. She testified however that his contribution was insufficient.

[18] As such, the only potentially blameworthy conduct of the payor father was that he perhaps underpaid his support obligation if one applies the Child Support Guidelines retroactively. He was always gainfully employed earning income between $60,000 and $80,000 per year since the date of separation.

Circumstances of the children

[19] The Respondent mother did not submit any evidence to the court to suggest that the children had suffered in any way since separation as a result of the alleged under payment of child support. The Applicant father testified that the children’s needs were always well met. The children have benefited from their mother being gainfully employed. Currently she testified that she is a child protection worker for the Children’s Aid Society in Toronto earning over $70,000 per year. The evidence was not clear as to when she started this employment.

[20] Both parties testify that the children have been involved in various extracurricular activities including soccer, hula dancing, swimming, karate, skating lessons, and tutoring for both math and French.

Hardship Occasioned by the retroactive order

[21] The Applicant father gave testimony, undisputed by the Respondent wife, that he has remarried and has three more children with his new wife. The children of the second marriage are six years old, three years old, and three months old, respectively. The father married his second wife in Nigeria and brought her to Canada where they reside together. His wife does not work outside of the home. He has never plead undue hardship throughout these proceedings. However, an order was made on consent on July 1, 2014, reducing his ongoing child support obligation pursuant to the Federal Child Support Guidelines, S.O.R./97-175. The Federal Guidelines stipulate that his support obligations be reduced by $200 per month to reflect the reality of his new family. The Respondent mother is to be commended for her reasonableness in this regard.

[22] The Applicant father, pursuant to an order of this court, currently pays child support for the children who are the subject of this application in the amount of $889 per month plus a further $111 per month as his contribution to the children’s s. 7 expenses. A retroactive order for child support would clearly result in hardship to the Applicant father.

Conclusion

[23] A holistic approach to the issue of retroactive support in this case covering the years 2005 through 2009 leads me to the conclusion that no such order should be made. Even if I had decided that a retroactive order was appropriate, I would have to determine an appropriate date for the retroactive order to become effective. According to D.B.S., the appropriate retroactive date would be the date when the Respondent mother gave the Applicant father notice of her intention to seek an increase in support payments. The Respondent mother did not give notice regarding the claim for child support until 2009 in her answer to his divorce application. However it was not until 2011 that she amended her pleadings and sought a retroactive support claim.

[24] For all of these reasons the claim for retroactive child support by the Respondent mother is dismissed.

Costs

[25] Rule 24 of the Family Law Rules, O. Reg. 114/99, guides the analysis of costs decisions.

[26] The following subparagraphs of Rule 24 are relevant:

24.(1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1).

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

(b) the reasonableness of any offer the party made; and

(c) any offer the party withdrew or failed to accept. O. Reg. 114/99, r. 24 (5).

(10) Promptly after each step in the case, the judge or other person who dealt with that step shall decide in a summary manner who, if anyone, is entitled to costs, and set the amount of costs. O. Reg. 114/99, r. 24 (10).

(11) A person setting the amount of costs shall consider,

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness or unreasonableness of each party’s behaviour in the case;

(c) the lawyer’s rates;

(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e) expenses properly paid or payable; and

(f) any other relevant matter. O. Reg. 114/99, r. 24 (11).

[27] Further guidance is provided by s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides:

131.(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid. R.S.O. 1990, c. C.43, s. 131 (1).

[28] I have considered all of these factors and heard submissions from the Respondent father’s lawyer that he seeks costs in the amount of $5,000 for these proceedings. The Respondent mother, who was unrepresented at trial but had retained counsel for most of the proceedings advised that she would seek costs of $7,000 if she was successful in this trial. As such she should have had the expectation that the Applicant father would face costs of a similar amount. However, I believe the Respondent mother was genuinely of the view that she was entitled to retroactive support and acted reasonably throughout these proceedings. Although she calculated the retroactive claim to be worth over $40,000 she offered to settle her claim for $10,000 months before the trial. She is a single mother raising two children with child support being paid by the Applicant father below the Guideline amounts. The Applicant father submitted an offer to settle these proceedings in March 2014. This offer was less favourable than the judgment herein and does not entitle the Applicant father to costs on a full recovery basis. As such, I exercise my discretion and award costs of these proceedings payable by the Respondent mother to the Applicant father in the amount of $2,500 all inclusive.

Justice P. W. Nicholson

Released: December 2, 2015