Court File and Parties

COURT FILE NO.: FS-13-18627 DATE: 20160614 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: DONALD WARWICK NOBLE Applicant – and – ROBYN BROOKE LYLE Respondent

Appearing in Person: Donald Warwick Noble Counsel: Joseph Kary, for the Respondent

HEARD: November 9, 10, 12, 13 and December 17, 2015 BEFORE: Harvison Young J.

Overview of Current Proceedings

[1] Donald Noble and Robyn Lyle met in high school and began to cohabit not long before their daughter Brooke was born on May 4, 1998. They separated in 1999. Their lives, and sadly, Brooke’s, have been largely defined and consumed by the conflict between the parents for significant parts of the intervening period. Despite this ongoing conflict, there has generally been a great deal of communication between them. The collateral damage to Brooke, now 18, who has been at the centre of this battlefield, has been enormous. While the parents both clearly love their daughter and vice versa, the obvious fact that their daughter has suffered terribly from the conflict has not caused them to stop. Brooke has been treated for generalized anxiety disorder for many years now. A number of professionals who have seen this family have commented on the connection between her distress and anxiety and her parents’ conflict. One of the witnesses at trial, Mr. Noble’s sister Jennifer, looked at me as she left the witness stand and said “please make this stop”.

[2] The present litigation began when the mother brought a motion to change child support in 2013, retroactive to January 4, 2004. While her motivation for doing so was a subject of dispute in the course of the trial, she submits that she decided to make the claim in 2013 when, after losing her job, she discovered that Mr. Noble’s income was significantly higher than the $36,400 income imputed to Mr. Noble by O’Connell J.’s consent order dated November 26, 2003 (the “O’Connell order”) upon which Mr. Noble had been paying child support. Mr. Noble subsequently brought a motion to change dated December 17, 2014, pursuant to an endorsement made by Kiteley J. Kiteley J. case managed the motions to change over most of the period since April, 2013, concentrating first on the custody issue.

[3] The motions before me were heard in the form of a trial which took one week. It was heard the week of November 9, 2015, and closing submissions were heard on December 17, 2015. Mr. Noble, for the purposes of the trial procedure as ordered by Kiteley J., was the applicant and led his evidence first. Mr. Noble and Ms. Lyle testified and were cross-examined viva voce. This was because of her view, as her endorsements throughout the case management process document, that Mr. Noble was significantly more prepared than Ms. Lyle. Mr. Noble called three other witnesses (Michelle McDonald, Claire Zidar-Triassi, and Jennifer Noble) whose evidence in chief was provided by affidavit and who were cross-examined by Mr. Kary, Ms. Lyle’s counsel, at trial.

[4] Similarly, Ms. Lyle called her mother, Barbara Lyle, her brother, Richard Lyle, and her friend, Jacquie Angiers, all of whom filed their evidence in chief and were cross-examined at trial. Barbara Lyle appeared and was cross-examined via Skype as she was not physically able to attend court.

[5] Mr. Noble’s position is that Ms. Lyle’s motion to change is ill-founded for a number of reasons. First, he raises delay on the part of Ms. Lyle because he says she knew all along that his income was higher than $36,400 and, at least generally, what it was. Second, his position is that notwithstanding the court order according to which Brooke was to stay with him one overnight during the week as well as alternating weekends, she was in fact spending much more time, and significantly more overnights, than the order reflected. Third, he submits that he did in fact contribute much more to Brooke’s support over the years, some through contribution to Ms. Lyle’s expenses (such as extended daycare costs), some through additional expenses for Brooke (such as riding lessons that he assumed over time) and some indirectly through the fact that she was spending a great deal of time with him and so he assumed more of her expenses (such as food, travel to activities etc.).

[6] In response to Ms. Lyle’s motion to vary, Mr. Noble also claimed sole custody of Brooke who was 15 at the time. There is no dispute that Brooke has been living exclusively with him since about August 15, 2013. The Office of the Children’s Lawyer was appointed to assist and counsel was appointed to represent Brooke. Kiteley J. awarded temporary full custody to Mr. Noble as of December 11, 2013, and made a permanent order of full custody in favour of Mr. Noble on April 1, 2014.

[7] In 2015, Mr. Noble brought a motion to change which was also case managed by Kiteley J. and heard at the same time. In his motion, Mr. Noble sought an order terminating his child support obligations as of September 1, 2013, and an order for child support and s. 7 expenses payable by Ms. Lyle as of January 1, 2015. The father also seeks a restraining order or “non-contact order” so that “Ms. Lyle cannot come over to my home, my work, or to where I may be with Brooke, my family or my girlfriends.”

[8] He asks for an order that Ms. Lyle not come within 500 metres of him, although at trial he spoke in terms of 100 metres.

[9] Kiteley J. ordered child support payable by Ms. Lyle in the amount of $65 per month commencing on February 19, 2015 by endorsement dated March 31, 2015 based on Ms. Lyle’s based on her annual income estimated at the time to be $13,363.00. By endorsement dated September 4, 2015, she increased the amount to $216 per month on the basis of her revised estimate of her annualized income which Kiteley held was “no less” than $26,770.00. That order has remained in effect, while Brooke has remained a child of the marriage. It is common ground that Brooke has remained living with Ms. Lyle and that as long as she remains a child of the marriage, Ms. Lyle must pay guideline child support to Mr. Noble.

[10] It is common ground that Mr. Noble’s income increased significantly over the years following the O’Connell order. His line 150 income, as reflected in Ms. Lyle’s amended application is outlined below and is based on the notices of assessment that Mr. Noble provided for the application:

Year	Line 150 income	Child support
2004	$37,964	$335.41
2005	$66,814	$610.98
2006	$70,879	$646.21
2007	$69,243	$632.19
2008	$89,545	$797.25
2009	$73,262	$666.41
2010	$100,966	$887.15
2011	$78,020	$709.15
2012	$82,217	$739.69

The Issues

[11] The central issue in this trial is whether the court should order retroactive child support as claimed by Ms. Lyle.

[12] The second issue is whether Mr. Noble is entitled to a restraining order as he claims. I will address this issue first.

The Restraining Order

[13] I note at the outset that Mr. Noble did not specify what statutory or legal basis he was relying on in seeking a restraining order, but I assume that it must be s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, which is the only provision that contemplates a restraining order such as the one sought by Mr. Noble. That provision provides that a court “may” make an interim or final restraining order against any person:

…if the applicant has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.

[14] None of the evidence relied on by Mr. Noble could justify the making of a restraining order at this time for a number of reasons. First, the evidence he relies on is very dated. Mr. Noble complained that he wants the ongoing harassment by Ms. Lyle to stop, but none of the evidence he provided is recent. Michelle McDonald, Mr. Noble’s former girlfriend who testified at the trial, testified about one incident when Ms. Lyle had yelled at her from the tennis court and been rude when Ms. McDonald was walking the family dog. However, this was some time ago, certainly no later than 2013, as it occurred during Ms. McDonald and Ms. Lyle’s relationship which ended sometime in 2013. Moreover, while such conduct is annoying and disruptive, it does not amount to conduct that constitutes “reasonable grounds to fear for [one’s] own safety or that of a child.” Mr. Noble complained of Ms. Lyle’s car being close to his home “for no good reason”, and also complained that her conduct tended to escalate whenever he has a new girlfriend. Even if this is the case, such conduct does not reach the threshold of a threat to safety as required by s. 35 as cited above.

[15] Mr. Noble also raised an incident at trial that occurred in August, 2013 where Ms. Lyle drove Brooke to his house after she and Brooke had a fight. According to Mr. Noble, Ms. Lyle failed to come to a full stop in front of his house before letting Brooke out of the car. He claims Brooke was effectively forced to leap out of her moving car. Brooke has been living with Mr. Noble since August 15, 2013. There was no recent evidence of harassing conduct and in particular since Brooke has been living with her father. It appears that she has had minimal contact with her mother since moving to her father’s apartment.

[16] The situation from Mr. Noble’s perspective is exacerbated by the fact that he and Ms. Lyle live in the same neighborhood within approximately two blocks of one another. Mr. Noble’s apartment is on the same block as a number of businesses including a chiropractor, salon, etc., some of which Ms. Lyle testified that she frequents. While this proximity no doubt increases the amount of contact the parties are likely to have, an order restraining Ms. Lyle from coming within 100 or 150 metres of Mr. Noble or his residence would be unduly restrictive on Ms. Lyle’s liberty, which is an underlying concern to courts in considering such orders. Mr. Noble’s evidence and submissions in support for his claim for a restraining order make it clear that the harassment which he feels and which he seeks relief from is directed at him and not at Brooke. He repeatedly stated that every time he has a new girlfriend, Ms. Lyle acts inappropriately. He attributed the end of his relationship with Ms. McDonald to this conduct.

[17] However, as Mr. Kary noted in his closing submissions, there is no recent evidence of any conduct vis-à-vis Brooke that would warrant a restraining order in her best interests.

[18] For these reasons, Mr. Noble’s claim for a restraining order is dismissed. I turn now to the major issue of this trial, that of Ms. Lyle’s claim for retroactive child support to January 1, 2004.

Retroactive Child Support

[19] The central issue in this trial is whether the court should order any retroactive child support for Ms. Lyle as she claims in her motion, and if so, in what quantity it should be ordered. There is no dispute that there has been a material change in circumstances by virtue of the changes in Ms. Lyle’s income since 2003 as set out above, and pursuant to the case law provided by the parties: See Rosemary Leonor Corcios v. Edgar Zenon Alfaro Burgos, 2011 ONSC 3326; Wilson v. Wilson, 2011 ONCJ 103, 2 R.F.L. (7th) 233; Manchester v. Zajac, 2011 ONSC 7200; Gartley v. Thibert, 2002 ONSC 2726, at para. 46 (Ont. S.C.).

[20] Ms. Lyle submits that Mr. Noble has engaged in blameworthy conduct and that the retroactive support should be ordered on the basis of his income, as disclosed by him, back to 2003. She claims that despite her repeated annual requests for his income information, he never provided it.

[21] Mr. Noble submits that the entire claim should be dismissed. His position is that although his income did increase, he assumed more and more of Brooke’s expenses, and that over time, she spent increasingly more time with him. He adamantly denies that Ms. Lyle ever asked him for the disclosure, pointing out that the O’Connell J. order provided for mutual disclosure and that he never received such disclosure from Ms. Lyle. Moreover, he asserts that Ms. Lyle knew for many years that his income was higher than the $36,000 imputed to him in the original order and that she decided to claim in 2013 largely out of anger and spite because of his relationship with Michelle McDonald and the fact that Brooke was spending most of her time with Ms. McDonald and Mr. Noble. In short, he effectively submits that as his income increased, their arrangements for the care and support of Brooke evolved over time with the bulk of that responsibility now resting with him.

[22] In his submissions at trial, Mr. Noble suggested that he should be entitled to retroactive support back to and possibly before August 2013 because Brooke was living with him at least from that date. I would dismiss this claim because it is not made in motion to change. He is, however, entitled to receive child support pursuant to Kiteley J.’s endorsement dated September 4, 2015 from Ms. Lyle as long as Brooke remains a “child of the marriage”. At the time of trial, it appeared as though this would only be until her 18th birthday, as she is not presently pursuing further studies.

[23] The legal test to be applied to a claim for retroactive child support is set out in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 and I will consider it in some detail below. Before doing so however, it will be helpful to review some of the background and context of the motion to change and the circumstances of this family, as they are relevant to the test set out in D.B.S. and to the requirement, at paragraph 99, that the test and its constituent factors be considered holistically.

The Factual Context

[24] As I have mentioned above, Mr. Noble and Ms. Lyle cohabited for a short time and separated when Brooke was still a baby in 1999. The litigation, particularly related to custody and access, was “high conflict” and was not resolved until late in 2003. Ms. Lyle was given custody of Brooke and Mr. Noble received access one overnight per week as well as every second weekend. Mr. Noble’s evidence (uncontested on this point) is that following the resolution of the litigation at the end of 2003, he and Ms. Lyle got along much better over the next few years. He states that Ms. Lyle knew that he was earning more than the income set out in the O’Connell order as they used to discuss their jobs. He testified that he helped Ms. Lyle apply for at least one job. She disagreed that he helped her, but did agree that he let her use his computer which does support his point that they were on good enough terms that she entered into his house. Mr. Noble has lived in the same general neighborhood as Ms. Lyle and Brooke since the separation, in fact, the evidence was that it was Ms. Lyle that alerted Mr. Noble to the availability of the apartment in which he has now lived for a number of years, which is within about two blocks of hers, and that she encouraged him to take it.

[25] Another matter of contextual relevance is the fact that Brooke has received counselling since the fall of 2006, both through the Anxiety Clinic at the Hospital for Sick Children and then at the Hincks-Dellcrest Centre from about 2010. Both parents participated in the counselling over the years, and both parents produced and sought to rely on clinical notes from this counselling, particularly in relation to where Brooke was living or primarily resident at certain times. In my view, the notes are of limited probative value with respect to the question of precisely how much time Brooke was spending with each parent. They do, however, document the fact that there was increased tension between Brooke and her mother from about 2009 forward, which was clear in any event from the evidence of both parents.

[26] Ms. Lyle commenced her original motion to change in April, 2013. I will return to the issue of timing below, but there were a number of other events in late 2012 and early 2013 that form part of this chronological context. In late 2012, Mr. Noble began a relationship with Ms. McDonald, whose mother owned a hair salon and spa in the neighborhood. By the end of that year, Ms. McDonald and Mr. Noble were living together in his apartment (although Ms. McDonald still had her own apartment). It is clear from the evidence at trial, and is not contested, that Brooke and Ms. McDonald got along very well together. Brooke spent time at the salon after school and a great deal of time with Ms. McDonald and her extended family. As I will discuss further below, Ms. Lyle was unhappy about Mr. Noble’s relationship with Ms. McDonald and about the fact that Ms. McDonald was spending more and more time with her father and with Ms. McDonald.

[27] Ms. McDonald, Mr. Noble and Ms. Lyle testified to the escalating tension between Mr. Noble and Ms. Lyle and Brooke and Ms. Lyle in the period of late 2012 on. According to Ms. McDonald, Brooke was spending most of her time with them, although she would sometimes go back to her mother’s house to sleep, often after apparently receiving upsetting calls or texts from her mother.

[28] By about late January, 2013, Ms. Lyle and Mr. Noble had exchanged emails in which Ms. Lyle suggested that Mr. Noble should be paying more child support, to which Mr. Noble responded that he should not be doing so given the fact that he was the primary caregiver and Brooke had been living with him “50:50”.

Events between 2004 and 2013

[29] I note in particular Mr. Noble’s testimony about the development of the parties’ post-separation relationship after the O’Connell order in 2003. Mr. Noble’s evidence was quite specific about issues such as his job at particular times and Brooke’s particular activities. On the other hand, Ms. Lyle was very vague, often making comments such as “that was so long ago, I have no idea”. Moreover, Ms. Lyle provided virtually no documentation on any aspect of the issues raised by her motion. I will comment more about credibility determinations below, but at this stage, I will outline the events from 2004 to 2013 according to Mr. Noble’s evidence in which he described caring for Brooke with increasing frequency.

[30] As I will discuss in greater detail below, I have in general accepted Mr. Noble’s evidence where it conflicts with that of Ms. Lyle.

[31] From 2004 to 2005, his access was exercised in terms that were very close to the O’Connell order, which provided that Brooke would be with him overnight on Thursdays and every other weekend from after school until Monday morning. But by 2006, he stated that he began “to get a lot more overnights”. For example, on occasion he was asked to pick up Brooke from school and keep her on nights that were not his when Ms. Lyle was suffering from a migraine. He testified that in 2006, he began to take her to her weekly Royal Conservatory of Music lessons.

[32] Mr. Noble claims that since 2006, Brooke has been with him at least 40% of the time. While Mr. Noble seems to have conceded that Ms. Lyle had overpaid a total of $1,648 in s. 7 expenses between 2004-2009, he claims that this should be effectively set off by the discounts in child support payable because of how frequently Brooke was with him, with the net result, in his submission, that she should owe him money. In addition, he testified that he spent a lot of additional money on Brooke that he did not treat as s. 7 expenses, such as gas expenses each Saturday for the 150 km trip to the riding stables.

[33] In 2007, Mr. Noble testified that the situation changed significantly after Brooke began to attend sessions with Dr. Elsa Broder at the Hincks-Dellcrest Centre for counselling relating to a learning disability and her diagnosis with a generalized anxiety disorder. His evidence is that he always picked Brooke up from school to take her to these appointments, but that sometimes Brooke ended up staying the night with him, which became more frequent in 2008. He regularly took her to her sessions at Bravo Academy for the Performing Arts, though also he acknowledged that Ms. Lyle did too from time to time. When a tutor was hired in 2007, Mr. Noble testified the sessions were always at his home.

[34] Mr. Noble described 2009 as a “sea change”. He claims that by this time, taking into account all of the additional time that Brooke was spending with him, she was living with him 60% of the time for child support purposes. He testified, for example, that on a number of occasions which were not on his time, Ms. Lyle was willing to let Brooke go with her father to a family friend’s chalet whose daughter was a good friend of Brooke’s. On those occasions, she would stay over at Mr. Noble’s home on Friday night so they could make an early start, especially when her mother wanted her home on Saturday night.

[35] By 2010, Mr. Noble testified that he was increasingly involved in caring for Brooke. He drove her to horse camp because, he stated, she did not want her mother going, saying that he did not mind as it was good bonding time. Brooke had frequent morning appointments that he would take her to and he testified that she always stayed over the night before those appointments. In addition, sometimes she stayed with him after she had afternoon appointments that he had taken her to.

[36] Both parties referred to an incident involving a cottage that Ms. Lyle had rented for a week one August. Mr. Noble’s evidence was that this took place in early August 2010, although Ms. Lyle referred to it as having been in 2011 or 2012. This is just one of many incidents detailing increased time for Mr. Noble beyond that provided for in the order, and so the date does not matter a great deal. In any event, according to Ms. Lyle, she had agreed that Brooke could bring a friend, but a few days later, Ms. Lyle became upset because Brooke was ignoring her friend. As a result, she brought both girls back to Toronto and left Brooke with her father until school started. According to Ms. Lyle, as soon as school started, the normal access schedule resumed.

[37] In 2011, the trend of Brooke spending more time with her father continued. Mr. Noble testified that at one point, when Brooke had apparently not been completing her homework consistently, the parties agreed to Mr. Noble’s suggestion that Brooke go to his house after school daily to do her homework. Brooke had stated to Dr. Maciel that she achieved more at his house. Mr. Noble pointed to a contact note, produced by both parties, by Dr. Maciel dated June 17, 2011, which documented this. In addition, he referred to another contact note signed by Dr. Maciel dated May 9, 2011, which refers to Brooke having spent the past 5 weekends with her father.

[38] By the end of 2011, according to Mr. Noble, he continued to do more with Brooke, from dealing with the school, getting her to and frequently attending counselling appointments with her, to taking her riding and to other activities. In addition, as indicated above, she stayed overnight with him far more than the access order provided. All in all, Mr. Noble claims that at that point, Brooke was living with her mother and father on a 50:50 basis. Ms. Lyle testified that she had to work two late evenings a week and Saturdays when she worked for a car dealership between November 2011 and March 2012. Ms. Lyle acknowledged that Brooke spent extra time with her father at that time, but testified that the schedule went back to normal as of March 2012 when her employment with the dealership ended.

[39] Comparatively, Mr. Noble claims the time Brooke spent with him increased even more in 2012, stating that she lived with him “most of the time”, and her mother only 15% of the time. He testified that he did many of the things “that a primary caregiver normally does”, such as picking her up early and taking her to all of her appointments.

[40] It is also clear from the evidence of both Mr. Noble and Ms. Lyle, that 2012 was a difficult year for Ms. Lyle. Her employment ended in March 2012. Her notice of assessment indicated a line 150 income of $28,538 that year, a drop from the $37,461.00 amount in her 2011 notice of assessment and lower that her subsequent 2013 notice of assessment indicating $35,026. In addition, she testified, a relationship broke up. She had three car accidents. Her evidence was that she was stressed financially and emotionally as a result of these incidents, though she also testified that things were better after she was no longer working evenings and weekends.

[41] For his part, Mr. Noble stated that he did attempt to help Ms. Lyle during this time. He stated that he bought her food and helped her out in other ways, despite the fact that she was receiving the child tax benefit, which he clearly believed he should have been getting. Ms. Lyle denied receiving any assistance whatsoever from Mr. Noble.

[42] Mr. Noble calculates that Brooke was living with him 85% of the time in 2012, although Mr. Noble counts time that Brooke spent with Claire Zidar-Triassi, a longtime family friend whose mother had been a close friend of Mr. Noble’s mother. Ms. Zidar-Triassi testified at the trial. As with the other non-party witnesses, her evidence in chief was provided by affidavit and she was cross-examined viva voce. I note at this point that, as with the other witnesses who filed affidavit evidence, much of it was inadmissible hearsay. However, Ms. Zidar-Triassi’s evidence setting out the amount of time Brooke spent at her home is admissible. She testified that Brooke was there for at least 6 weeks during the summer of 2012, and another several weeks in total including March break, the Family Day weekend, as well as the weekends of Ms. Zidar-Triassi’s children’s birthday parties. As far as the summer of 2012 is concerned, she stated that Brooke did return to Toronto on a few occasions for family events. I accept her evidence, which I found to be candid and straightforward on the question of the amount of time that she stayed with her family.

[43] Ms. Lyle denied that Brooke spent this amount of time at the Triassi home, although she did acknowledge that Brooke visited her. It is clear that Mr. Noble counts the Triassi time toward “his” time. I do not find that this period of time “counts” as time with Mr. Noble for the purposes of determining the percentage of time with each parent. However, nor was it the case that Brooke was in the care of her mother or her family during such periods. The fact that Brooke spent such significant amounts of time away from her mother runs counter to Ms. Lyle’s general insistence at trial that the O’Connell access order was always observed and is one more factor to be taken into account in assessing the reliability of her testimony on the subject of the amounts of time Brooke spent in the care of her respective parents and their families over the years.

[44] It is clear from the evidence that tensions between the parents began to rise, particularly at the end of 2012 and the beginning of 2013. By early 2013, the increased tension between the parents was accompanied by increased anxiety on Brooke’s part.

[45] Ms. McDonald testified that Brooke appeared to be increasingly anxious and testified that in early 2013 Brooke would receive text messages or phone calls from her mother insisting that she come home immediately and that she would appear to be panicked and anxious.

[46] Ms. McDonald’s evidence that Brooke seemed to be increasingly anxious is also borne out by an incident on March 16, 2013 in which Brooke was taken, at her request, to the emergency department at Sunnybrook Hospital. The Emergency Report diagnosis was anxiety, referring to Brooke’s reports that her parents were fighting a lot, that she felt she had “bugs” inside her and that she worries a lot. Mr. Noble emphasized the reference in the Report to Brooke’s report comment to the doctor that she was living 50:50 with each parent. That statement has very limited probative value in terms of quantifying the precise amount of time she was spending with each parent. From the perspective of a child, it may simply reflect going back and forth between two households. It may reflect a child in the middle who doesn’t want to attract the ire of either parent. In any event, it is hearsay and not admissible for the truth of its contents.

[47] Although both parents seem to have found this incident distressing, it did nothing to slow down the train of escalating tension and impending litigation. Ms. Lyle commenced her motion to change in April 4, 2013 and amended it, following Mr. Noble’s income disclosure, on February 5, 2014. In his answer, Mr. Noble claimed custody of Brooke and child support as of September 1, 2013.

[48] At the same time, there was a dispute about Brooke’s riding lessons. Ms. Lyle took the position that Brooke should not be permitted to ride until she improved her school performance (although her riding did in fact continue). Brooke (not surprisingly) was very upset about this. Mr. Noble saw this “threat” on Ms. Lyle’s part as abusive because Brooke liked the riding so much. It is clear that both parents discussed the issue and their conflict about it with Brooke. I mention this here to illustrate the depth of acrimony between these parents. In my view, neither parental position was defensible as being in the best interests of Brooke. I do not agree with Mr. Noble that Ms. Lyle’s position was self-evidently “abusive”. Rather, the incident illustrates the depth of differences in their parental styles.

Admissibility of electronic communication evidence

[49] At trial, Mr. Kary argued against the admissibility of certain text messages and emails from Ms. Lyle dated mostly in the first half of 2013. As I advised the parties in the course of the hearing, the text messages that she did not identify as her own are not admissible as truth of their contents. However, I do not accept Ms. Lyle’s evidence that she did not recognize these messages. There were a number of them, and while she suggested that the texts had been “tampered with”, she was very vague about what she meant by this. According to Mr. Noble, he had taken photos of the texts produced and the time stamps were of the photos. He also stated that he wrote the dates that appear in handwriting on some of the copies. This may have been what Ms. Lyle was referring to, but it was not clear. In one instance, she indicated that a message was not hers because, she stated, she would not “swear” in a text. The text in question, which reads at the top “Mom (work)”, stated as follows:

What the hell is going on with u I don.t want u hanging out at the salons specially on my day…Need to get to my place or your dads…I am really upset Brooke i am going to be speaking to Michelle she is your dads girlfriend not your best friend or mother and u have the gull [sic] not to see your nanny but to hang with Michelle??????NO this is NOT going to be happening….

[50] Ms. Lyle did, however, identify as hers an email dated March 28, 2013, which contained similar language:

Just pay the FRO Don! …(they are telling me you are not consistent with your paymets [sic] and that it can lead to you losing your drivers lic. or when you go to try and get a loan you will have a hard time if they put a lien on you ..you can take is as harassment. You have been abusive to me my entire time I have know you… YOU are whipped by Michelle and I will be personally speaking with her. You are a deadbeat dad! And everybody knows it- and Rona’s views of you were correct. She doesn’t agree with you’re her daughters relationship and I know how she feels as you are a complete A hole and poor michelle will find out the truth sooner than later. […]

Poor Michelle to be saddled with the douch you are and I do not know rhona her mother from a hole in the wall but the customers are the ones telling her this. And she had her doubts so just as RONA and you will see how she felt or feels about you and your new poor lady…you will see what her true feelings are!. FUCK you you think you are this wonderful dad? …

[51] As Ms. Lyle identified this message as hers, it is admissible for the truth of its contents, i.e. that Ms. Lyle wrote these words to Mr. Noble. I note that the style and syntax of the writing in the text message she did not acknowledge and the email that Ms. Lyle did acknowledge are similar. Ms. Lyle’s refusal to identify the texts or emails (with the exception of the March 28, 2013 email) does not enhance her credibility. I do not believe that Ms. Lyle was not the author of the texts clearly labeled “Mom”, and nor do I believe her bare assertion that their contents were “tampered with”. Nevertheless, I will not admit the texts that she was not willing to identify as truth of their contents. This is a factor that I have taken into account in considering the credibility and reliability of her evidence where it contradicts that of the other witnesses, particularly Mr. Noble and Ms. McDonald.

[52] Following the completion of the evidence and submissions, both Mr. Kary and Mr. Noble sent correspondence on the subject of the admissibility of the evidence that arose during the trial. I have not found it necessary to consider any more on the subject than I heard in the course of the trial, as I indicated in my endorsement dated February 5, 2016.

[53] With this context in mind, I will now turn to consider the law governing retroactive support and its application to this case.

Law and Analysis

The Legal Test Governing Retroactive Support: D.B.S. v. S.R.G.

[54] The legal test to be applied to a claim for retroactive child support is set out in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. D.B.S. remains the most authoritative case with respect to retroactive child support and summarizes the law on this issue as presented in the cases cited by the parties, both prior to and post D.B.S.: Rosemary Leonor Corcios v. Edgar Zenon Alfaro Burgos, 2011 ONSC 3326; Wilson v. Wilson, 2011 ONCJ 103, 2 R.F.L. (7th) 233; Manchester v. Zajac, 2011 ONSC 7200; Gartley v. Thibert, 2002 ONSC 2726 (Ont. S.C.); Lacey v. FitzGerald, 2003 SKQB 484; Stadnyk v. Stadnyk, 2004 SKQB 230, 4 R.F.L. (6th) 198; Craig v. Griffiths (1993), 119 N.S.R. (2d) 329 (N.S. Fam. Ct.); Walker v. Walker (1999), 1 R.F.L. (5th) 180 (Alta. Q.B.). After considering the law carefully in relation to the evidence before this court, I conclude that this is not an appropriate case in which the payment of any retroactive child support to Ms. Lyle should be ordered.

[55] The factors that must be applied by a court considering retroactive support were enunciated in Bastarache J.’s majority decision in D.B.S. The factors include:

a. Is there a reasonable excuse for why an increase was not sought earlier? b. Has the conduct of the payor parent been blameworthy? c. Do the circumstances of the child support the making of a retroactive award? d. Would a retroactive award cause hardship to the payor parent?

[56] Before reviewing the factors that a court is to consider, I would make a few introductory points. First, D.B.S. reflects the view that the circumstances bearing on a consideration of retroactive support are to be considered holistically. These are overlapping considerations. Details that bear on why an increase was not sought earlier may also bear on the conduct of the payor. For example, if a mother has failed to bring a motion because the father has threatened to hurt her or stop paying any money at all, she may have a “reasonable excuse” for why an increase was not sought earlier. In this circumstance, threats will also bear on the payor’s conduct.

[57] Second, child support is to be seen as a right of the child.

[58] Third, as Bastarache J. wrote at para. 74 of his reasons:

In summary, a payor parent who diligently pays the child support amount ordered by a court must be presumed to have fulfilled his/her support obligation towards his/her children. Acting consistently with the court order should provide the payor parent with the benefit of predictability, and a degree of certainty in managing his/her affairs. However, the court order does not absolve the payor parent — or the recipient parent, for that matter — of the responsibility of continually ensuring that the children are receiving an appropriate amount of support. As the circumstances underlying the original award change, the value of that award in defining parents’ obligations necessarily diminishes. In a situation where the payor parent is found to be deficient in his/her support obligation to his/her children, it will be open for a court…to vary an existing order retroactively. The consequence will be that amounts that should have been paid earlier will become immediately enforceable.

[59] D.B.S. sets out a two-stage analysis. This first stage governs whether the discretion to order retroactive support should be exercised and requires the application of the four factors I have just set out. The second stage considers the quantum of support to be ordered. I find that, applying the first stage of the analysis, this is not an appropriate case in which the court should exercise its discretion to order retroactive support. Thus, in this case, it is not necessary to assess the quantum claimed.

[60] I mention this here because, as my review of the evidence above indicates, the parties spent a considerable amount of time at trial with respect to precisely how much time Brooke was spending with each parent and whether and how much that should affect Mr. Noble’s child support obligations. In addition, Mr. Noble led considerable evidence to the effect that he had contributed significant amounts of money over the years and that those amounts should be considered as well. These claims and the evidence on these points have some relevance to the first stage D.B.S. factors but the precise quantum of time spent by Brooke with each parent, or the precise amount of money spent on Brooke, is less relevant in the first stage of analysis.

[61] I address each of the D.B.S. factors below.

Does Ms. Lyle Have a Reasonable Excuse for Failing to seek an Increase Earlier?

[62] In D.B.S., Bastarache J. explained the rationale behind the first factor, which considers whether the recipient has a reasonable excuse for failing to seek an increase earlier. He outlined the considerations in applying this factor as follows at para. 102:

Not awarding retroactive child support where there has been unreasonable delay by the recipient parent responds to two important concerns. The first is the payor parent’s interest in certainty. Generally, where the delay is attributable to unreasonableness on the part of the recipient parent, and not blameworthy conduct on the part of the payor parent, this interest in certainty will be compelling. Notably, the difference between a reasonable and unreasonable delay often is determined by the conduct of the payor parent. A payor parent who informs the recipient parent of income increases in a timely manner, and who does not pressure or intimidate him/her, will have gone a long way towards ensuring that any subsequent delay is characterized as unreasonable: compare C. (S.E.) v. G. (D.C.). In this context, a recipient parent who accepts child support payments without raising any problem invites the payor parent to feel that his/her obligations have been met.

[63] Ms. Lyle asserts that she made her claim in April, 2013 because she is in difficult financial straits and that she only recently learned that Mr. Noble’s income was considerably higher than the amount upon which his child support was originally based. She testified that she was very surprised to find that it was as high as his disclosure indicated and amended her application as a result.

[64] Mr. Noble asserts that Ms. Lyle was aware from very early on that his annual income was higher than $36,400. His evidence was that over the years, Brooke spent more and more time with him, spending at least 40% of the time with him from the outset and then spending more than 50% of her time with him from 2009 forward, going as high as 85% in 2012. According to his revised calculations, which he submitted at the beginning of trial, he owes the mother nothing and she owes him $58,745.00.

[65] The question as to whether Ms. Lyle knew what Mr. Noble’s income was at any point prior to 2013, and whether she had sought disclosure from Mr. Noble, is one of credibility. This assessment is central to the determination of whether Ms. Lyle had a reasonable excuse for failing to seek an increase at an earlier time.

[66] After careful consideration of the evidence and submissions of the parties, I find that Mr. Noble was significantly more credible and reliable a witness than Ms. Lyle. In particular, there are a number of central issues upon which I reject her evidence on the subject of whether and when she knew about Mr. Noble’s increased income, and so her claim that she has a reasonable excuse for not having sought an increase at an earlier time. In doing so, I will not repeat here details discussed earlier, such as her refusal to acknowledge emails and texts that have affected my assessment of her credibility.

[67] First, I do not accept her evidence that she repeatedly asked Mr. Noble for disclosure “every April”. She did not provide a single shred of evidence to document this claim. Moreover, the order required that the parties “exchange” disclosure (which was relevant to the proportion of s. 7 expenses to be paid) and there is no indication that she ever provided him with such disclosure. It is reasonable to think that, had she made such requests, she would have forwarded her disclosure to him. There is no indication that she ever did and indeed, she did not claim to have done so.

[68] Second, I do not accept her evidence that she did not know that his income was higher than the amount stipulated in the O’Connell order until Brooke told her, apparently shortly before she brought the motion to change. Ms. Lyle was certainly aware of employment changes on Mr. Noble’s part over the years.

[69] Both Mr. Noble and Ms. Lyle have, over the years, earned modest income and changed jobs a number of times.

[70] While she may not have known that he earned $100,000 in 2010, she admitted in cross-examination that she knew that he was earning “over $60,000 and $67,000” at Greensavers and that he earned bonus and commissions in addition to that. While she was vague about how long she had known this, she stated that Brooke had probably told her when he was terminated. Although when giving this testimony, she was unclear about what she was referring to, the context of her answers suggested she was actually referring to the point at which Mr. Noble went from being a contractor with Greensavers to being an employee with a bonus and commission in 2009.

[71] Most telling, however, is that in answering Mr. Noble’s question as to how she had known his salary while working at Greensavers, she noted, in reference to an email to Mr. Noble dated March 28, 2013, that she had “added the stuff about commission and bonus because I knew and you were always talking about it”. At one point in her testimony at trial, she stated that he was always “boasting” about his additional income or potential income. That also suggests an earlier time frame (i.e. 2009 and 2010), as it is unlikely that she would have described Mr. Noble to be “boasting” about an increase in income after he no longer had it.

[72] This tends to confirm Mr. Noble’s evidence that she knew about his salary, at least in a general sense. It is unlikely that he would have “boasted” to her about bonus and commission if he had not shared the base amounts with her. Moreover, Ms. Lyle’s memory was vague as to the details and dates, and she produced no documentation of any sort to support her versions of events. The evidence established that Mr. Noble and Ms. Lyle cooperated well and saw each other regularly in the years from 2004 to 2009. I found Mr. Noble’s evidence on this issue much more credible. I accept his evidence that she knew from him that his income was higher than that in the O’Connell order, most likely by about 2006, as Mr. Noble testified, and that she knew that his income was in the range of over $60,000 plus commission and bonus from around the time that he became an employee of Greensavers with a compensation package in this range.

[73] According to Mr. Noble, he paid significantly more toward Brooke’s support, albeit informally, in a number of ways. First, he says that over time, he paid more of the s. 7 expenses. Second, he says that he paid other amounts for which she has not given him any credit.

[74] By the end of 2011, Mr. Noble’s evidence was that Ms. Lyle was contributing nothing in s. 7 expenses and has not since, and Brooke was spending more time with him than the O’Connell order stipulated. Ms. Lyle denied both of these claims. She did, however, acknowledge certain short periods during which Brooke spent extra time with her father on consent, particularly when she was working long hours between November 2012 and March 2013.

[75] In essence, Mr. Noble painted, at least implicitly, a picture of a situation in which the parents informally agreed to him absorbing more of the expenses in lieu of a formal change in the order. Both parents at various points in their evidence stated that they had earlier rejected applying for a variation. Mr. Noble’s evidence was that he did not wish to return to court because of the acrimony involved in the initial litigation. Ms. Lyle stated that she did not do so earlier as she could not afford a lawyer, though in cross examination, she denied that finances were a factor, saying instead that her family had “begged” her not to go back to court for fear of retaliation from Mr. Noble. Mr. Noble also denied that Ms. Lyle had ever asked him for disclosure, and contended that she also did not provide any to him.

[76] Mr. Noble submitted that Ms. Lyle applied for retroactive child support out of anger and spite about his relationship with Ms. McDonald and the fact that Brooke was spending more time with them.

[77] One such example of expenses for which Mr. Noble claims he paid without credit from Ms. Lyle was money for extended daycare costs which he testified that he paid directly to the daycare. He (not Ms. Lyle) produced some receipts from Leaside daycare, each in the amount of $400, which he testified that he paid in cash. He also produced a bank statement of his that shows $400 withdrawal from his account on September 8, 2008, the same day a receipt was issued in Robin Lyle’s name by the daycare. He stated that he had paid other such amounts, but did not obtain receipts until advised by friends that he should be careful to document these payments.

[78] Ms. Lyle denied that he paid any such amounts, stating that this was not possible because she was receiving a daycare subsidy and that she reported the amounts she paid each year. However, unlike Mr. Noble, she introduced no records, no notes and no bank statements whatsoever to document her version of events. Her denial, given the daycare receipt and the corresponding debit from Mr. Noble’s bank account, is not credible. In my view, the obvious inference is that having Mr. Noble actually pay all or some of these amounts was a way of obtaining affordable day-care. The cost to the family of daycare, had Mr. Noble been “officially” paying, would have been much higher as the total amount payable would not have been subsidized. In short, it was a form of income splitting and certainly was of direct benefit to Ms. Lyle as, in effect, additional child support. Both the documentation produced and the common sense inferences to which they give rise, support Mr. Noble’s version of events and run contrary to Ms. Lyle’s evidence. I accept his evidence that he paid daycare expenses, at least from time to time, and I also accept his evidence that on a number of those occasions he did so without obtaining any receipts, but that he began to write cheques when a friend told him that he should keep records.

[79] Mr. Noble also produced a number of cheques documenting money that had been given to Ms. Lyle apart from child support. Yet, Ms. Lyle has no documentation that explains this or that sets out what she claims she was owed in s. 7 expenses.

[80] Both parties have been in difficult financial circumstances over the years. Ms. Lyle testified that she did lend Mr. Noble money from time to time and that he paid her back. She asserted that at least some of the cheques he produced that were made out to her were such repayments. Again, she produced no documentation with respect to any of this. Mr. Noble did not deny that there had been small loans from Ms. Lyle to him. Rather, Mr. Noble asserts that over the years, and particularly around and after 2009, he did give her money and that the cheques he was able to produce do not represent all of the contributions. He asserts that he sometimes gave her cash or cheques (for example to cover day care expenses as I have mentioned). But these informal arrangements overall support his version of events over hers.

[81] I find that her blanket denial that he ever gave her any money in addition to the child support (other than loan repayments) is not credible. Again, she has produced no documentation to support her claims or to refute his.

[82] It is not possible, however, to quantify with any precision the amounts that Mr. Noble has contributed either to Ms. Lyle directly, to Brooke, or to third parties (such as the amounts paid to the daycare) during the period covered by Ms. Lyle’s claim. The point, however, is that I do not find her evidence credible that he contributed virtually nothing in addition to his table child support, which she also claims was too low.

[83] In considering the credibility of the parties, I take account that both parties were very emotional at trial and that both their memories and judgment was somewhat self-serving. Mr. Noble, however, tried hard to be accurate in his testimony and devoted enormous effort to finding and producing relevant documents to support his claims. In some respects, such as the actual percentage of time that Brooke was living with him up to 2013, I do not rely on his somewhat self-serving evidence for the purpose of establishing precise percentages of time spent with him. For example, Mr. Noble pointed to an email from Brooke to him dated January 17, 2012 that stated, “Hey, I’m home” as evidence that she was primarily living with him. I do not accept that such an email from a child-like Brooke who lives in the middle of parental conflict is probative of where she is primarily living.

[84] In the course of testifying, Mr. Noble tried to be cooperative when he was being cross-examined while Ms. Lyle was continuously combative and uncooperative. I appreciate that it is difficult to be cross-examined personally by your former partner, but that does not explain her uncooperative nature. For example, she refused in the course of cross-examination to recognize a chart that she herself had produced (exhibit 33). I also find that her evidence as to the chronology and timing of events was generally more vague and less reliable than that of Mr. Noble.

[85] The pattern that emerges from the evidence I do accept is that over the years, and particularly between about 2003 and 2009, Mr. Noble and Ms. Lyle managed to cooperate as parents and informally adjusted the access and support arrangements. Mr. Noble assumed more parenting responsibility during time that was not formally “his”, often because his work schedule was more flexible and/or because Ms. Lyle’s schedule was less so. He also assumed more of the ancillary expenses associated with this, ranging from parking for medical appointments etc. to additional food costs etc. Over time, and as Brooke’s relationship with her mother became more difficult in 2009, this trend increased so that Brooke was spending more and more time with her father, and he assumed direct responsibility for certain expenses such as horseback riding and orthodontic expenses.

[86] While the parties now disagree as to the extent of Mr. Noble’s contribution or how much time Brooke was spending with him, there are a few points that I find to be clear on the evidence.

[87] To begin with, neither party ever provided formal annual income disclosure to the other. Second, Mr. Noble did provide more support than the original imputed income amount would have mandated, directly and indirectly over the years. Third, the parties (quite appropriately) treated the access provisions flexibly and for many years, Brooke went back and forth as circumstances called for. This was in her best interests. Other than the ill-fated cottage vacation that ended prematurely in the summer of 2010, there was no mention of Brooke and her mother spending vacation time together or, for example, skiing together. In short, over the years, the original consent order effectively evolved to reflect the changing and developing needs of the child and the practical circumstances such as the working hours of the parents.

[88] Mr. Noble argues that he did not owe any additional child support as she was living more and more with him. I agree that she was spending more and more time with Brooke but I make no finding as to the percentage of the time or whether that met the 60/40 trigger. I do accept that as time moved on, and certainly by late 2012, she was spending more and more waking time with her father and less and less with her mother.

[89] Increasingly, according to both Ms. McDonald and Mr. Noble, she spent minimal time at her mother’s home, going home only to sleep, often only because her mother called her to come home. Some of this was due to Ms. Lyle’s working hours, some was due to the additional time Mr. Noble spent driving her to activities such as riding. It is also clear and not contested that as Brooke reached adolescence, she and her mother were frequently at odds with one another. Ms. Lyle testified that the access terms of the O’Connell order were always respected, with the exception of the period from November 2011 to March 2012 when she was working Saturdays and weekday evenings. I prefer Mr. Noble’s evidence on these issues. Again, it was specific, relating the time spent to particular activities or medical appointments, for example, and often backed up with some documentation showing dates.

[90] In D.B.S., Bastarache J. referred to the “practical realities” of applying for a variation as factors that may justify a failure to apply for a variation in a timely manner. One of such realities is the expense involved in making such a motion. Although Ms. Lyle mentioned in her email to Mr. Noble of March 28, 2013 that she denied that expense was a factor saying that the real reason was that her family had begged her not to apply for a variation as “they knew you would retaliate”, adding that “this” is what happened, apparently referring to this litigation.

[91] In any event, the failure to seek a variation does not explain her failure to seek annual disclosure of Mr. Noble’s income. Mr. Kary made much in the course of the trial of Mr. Noble’s failure to provide annual disclosure pursuant to the O’Connell J. order. I do not accept this argument, however, for two reasons. First, the order provides as follows at para. 4:

This Court orders that the parties are to provide each other by May 1 of each year with all the disclosure necessary to satisfy section 21 of the Federal Child Support Guidelines.

[92] There is no suggestion, much less evidence, that Ms. Lyle ever complied with this section of the order by providing such annual disclosure to Mr. Noble. Second, and more significantly, I find that she never requested such disclosure from him. It is clear from the volumes of materials produced that Ms. Lyle and Mr. Noble had been exchanging emails for a number of years, yet she was not able to point to a single written request for such disclosure, nor to anything that referred to any request for disclosure on her part. I do not accept her evidence that she repeatedly asked him for disclosure.

[93] There is nothing in the evidence that satisfies me that Ms. Lyle had ever given consideration to applying for a variation before late 2012 and early 2013, despite the fact that by that time she had long known that his salary was well over the $34,800 set out in the O’Connell order. So why did she decide to move for a variation in April, 2013?

[94] First, as reviewed above, 2012 was a difficult year personally and financially for Ms. Lyle. She was out of a job and short of money.

[95] Second, by the end of 2012, Mr. Noble had entered into the relationship with his new partner, Michelle McDonald. As indicated, Ms. McDonald and Mr. Noble met through Ms. McDonald’s mother’s hair salon and spa which was located just a few doors from Mr. Noble’s home and just about a block away from Ms. Lyle’s home.

[96] Ms. McDonald testified that she and Mr. Noble lived together (or at least spent a great deal of time at his apartment) from October, 2012. Her evidence was that she and Brooke got along very well and that Brooke was “almost always with us”, though she sometimes would go home to sleep after her mother called to demand that she come home. Particularly from November 2012 to March 2013, Brooke spent “almost 100% of her time before and after school and for most meals until her mother would call or text her between 9:00 p.m. and 11:00 p.m. to come home and sleep”. Though in cross-examination, Ms. McDonald acknowledged that she had kept her apartment for much of this period and that she was not always at Mr. Noble’s apartment so could not actually say where Brooke was 100% of the time.

[97] Ms. McDonald also testified about an incident in summer 2013 when she was walking the (Brooke) family dog past tennis courts in the neighborhood where Ms. Lyle was playing. She testified that Ms. Lyle yelled repeatedly at her from the tennis courts. Ms. Lyle denied this. I do not accept Ms. Lyle’s denial. I found Ms. McDonald candid and credible, and given that she and Mr. Noble broke up a number of years ago, she has no axe to grind in this litigation.

[98] It is clear however from Ms. McDonald’s evidence and Mr. Noble’s evidence that the relationship between Ms. Lyle and Brooke was increasingly strained. She testified that Brooke would frequently become stressed and anxious when receiving messages from her mother, often leaving abruptly to run home. I am satisfied on the basis of all of the admissible evidence that the relationship between Mr. Noble and Ms. Lyle became very strained as his relationship with Ms. McDonald developed. I accept that she was also upset about Brooke’s increasingly close relationship with Ms. McDonald, despite Ms. Lyle’s denial on this point.

[99] I found Ms. McDonald to be a credible and straightforward witness (although I have disregarded parts of her affidavit that were inadmissible such as expressions of her opinion on Mr. Noble’s parenting). She described numerous incidents in which Ms. Lyle was rude to her on the street, particularly from about March, 2013 on. For the first time in years, Ms. Lyle began in early 2013 to insist on adhering to the letter of the access order.

[100] In summary, I find that over the years since 2004, the parties developed a pattern, going back at least to 2007, according to which Mr. Noble had made additional voluntary payments and assumed more of the s. 7 expenses. I also find that Ms. Lyle had known from very early on that his income was significantly more than the amount imputed to him for child support purposes in 2003. In particular, Ms. Lyle knew in 2009 that Mr. Noble was earning much more than the income imputed to him in the 2003 order, and I infer from the informal arrangements in place at least since 2007, that Mr. Noble was making payments in addition to what he was required to make pursuant to the order.

[101] The arrangement between these parents had evolved over the years so that Mr. Noble assumed a greater portion of the day-to-day parenting responsibilities than contemplated by the O’Connell order, and also contributed more financially to Brooke’s support both directly and indirectly.

[102] This evolved arrangement also explains why Ms. Lyle never sought disclosure from him and why she never sought a variation.

[103] After hearing and reviewing the evidence and the parties’ submissions, the inescapable conclusion is that Ms. Lyle’s real motivation behind her 2013 motion to vary was anger over Mr. Noble’s relationship with Ms. McDonald and Brooke’s relationship with Ms. McDonald. This would also explain Ms. Lyle’s insistence in early 2013 that the O’Connell access terms be strictly respected.

[104] In conclusion on this point, Ms. Lyle did not have a reasonable excuse for failing to apply for a variation before April, 2013. I find that she knew that Mr. Noble’s income was significantly in excess of $36,400 at least by 2009. Despite this, she did not raise the issue or ask for disclosure until she brought her 2013 application going back to 2004.

Was Mr. Noble’s conduct “blameworthy” within the meaning of D.B.S.?

[105] Mr. Kary submits on behalf of Ms. Lyle that the extent of the increase over time of Mr. Noble’s income and his failure to adjust the child support he paid as a result of that increase in income constitutes blameworthy conduct on his part.

[106] Bastarache J. in D.B.S. explained the relevance of blameworthy conduct on the part of the payor parent at paras. 106-107:

Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactive award. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. A similar approach was taken by the Ontario Court of Appeal in Horner v. Horner (2004), 72 O.R. (3d) 561, 2004 ONCA 34381, at para. 85, where children’s broad “interests” — rather than their “right to an appropriate amount of support” — were said to require precedence; however, I have used the latter wording to keep the focus specifically on parents’ support obligations. Thus, a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments: see Hess v. Hess (1994), 2 R.F.L. (4th) 22 (Ont. Ct. (Gen. Div.)), 1994 ONSC 7378; Whitton v. Shippelt (2001), 293 A.R. 317, 2001 ABCA 307; S. (L.). A payor parent cannot intimidate a recipient parent in order to dissuade him/her from bringing an application for child support: see Dahl v. Dahl (1995), 178 A.R. 119 (C.A.), 1995 ABCA 425. And a payor parent cannot mislead a recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not.

No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see A. (J.) v. A. (P.) (1997), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), 1997 ONSC 12394, at pp. 208-9; Chrintz.

[107] More specifically, Mr. Kary submitted that the gap between the amounts of child support that Mr. Noble was paying, based on an imputed income of $36,400, and the amounts as set out above which went as high as $100,000 in 2010, constitute blameworthy behavior, particularly when he failed to comply with the annual disclosure requirements set out in the O’Connell J.’s order. Mr. Kary further submitted that any trivial amounts contributed voluntarily by Mr. Noble do not affect this.

[108] Mr. Noble submits that he has not engaged in blameworthy conduct because he has not engaged in any conduct that “privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support”: See D.B.S., at para. 106. He submits that he has always put Brooke’s interests over his own and that he has contributed significant amounts of money to Ms. Lyle and to Brooke. While he recognizes that he should have formalized this arrangement by a varying the amounts, he stated that the previous experience of litigation was expensive and traumatic and that he wanted to avoid it.

[109] In addition, Mr. Noble testified that over the years, and particularly from about 2009, Brooke spent more and more time living with him. He testified that he happily absorbed the additional costs associated with this and the fact that he assumed more and more responsibility for taking her to counselling and dental appointments, as well as to her extracurricular activities and horseback riding in particular. His evidence, uncontested on this issue, was that he took her to her horseback riding lessons and paid for them from 2010 forward. The lessons required 150 kilometres of driving, round trip, and his evidence was that she frequently stayed at his house the night before whether it was “his” weekend or not. His evidence was that Ms. Lyle paid nothing toward s. 7 expenses after 2011. By the time he had that very good year in 2010, and earned in the range of $100,000, he had assumed a large part of s. 7 expenses while Brooke was spending more and more time with him.

[110] Mr. Noble did not seek any change in the formal custody arrangements until this motion was brought.

[111] In his answer and subsequent motion to change, Mr. Noble claims that Brooke was already living with him by the time the application was brought, and had been for some time, such that he should not owe any additional child support. In addition, he testified that she had always been with him more than the terms of the access order specified. In the course of his evidence, he recounted his recollections of the arrangements over time which I reviewed earlier. In essence, he submits that the parenting arrangement evolved over time. He took Brooke more and more, often in response to the mother’s needs due to job related constraints, and contributed, directly and indirectly to more and more of her expenses. He emphasizes that Ms. Lyle knew that his income had gone up throughout. On the other hand, Ms. Lyle’s evidence was that the access schedule never changed except that Mr. Noble took Brooke to her riding lessons on Saturdays even when it was not his weekend because her hours often did not permit this and except for short periods when her work schedule required that he take her more frequently.

[112] I do not accept her evidence on this. Again, Ms. Lyle had no calendars or aides memoires to document her assertions. Her witnesses were not helpful on this issue. Her brother, Richard Lyle, for example, was simply able to say that Brooke “always” lived at her mother’s and that he didn’t know of any change until after summer 2013. His only direct knowledge was that his mother, Brooke’s grandmother, Barbara Lyle, continued to do her laundry and he regularly saw dirty “horse clothes” there. The place where Brooke’s laundry was done is simply not probative of where she was living at the time, particularly when no one is suggesting Brooke lived at her grandmother’s house. Barbara Lyle lives in the same neighborhood as both Mr. Noble and Ms. Lyle. The fact that her laundry was done by Barbara Lyle may mean nothing more than that it was more convenient and cheaper than going to a Laundromat if neither apartment had laundry facilities (which was not in evidence).

[113] In arguing that Mr. Noble’s conduct was blameworthy, Mr. Kary also emphasized the disparity in the incomes of the parties. There is no question that there was such a disparity that grew over time. However, while this disparity is a relevant consideration (See D.B.S., at para. 152) in assessing whether there is blameworthy conduct, it is not determinative.

[114] Here, Mr. Noble’s evidence, which I accept, was that over the years, he assumed more responsibility for Brooke, both in terms of time and financial support. In other words, his contributions did increase so that the disparity was effectively less than a simple examination of the incomes would indicate. As he pointed out, he took her to more and more activities and always covered meals, gas, parking on those occasions, and as she spent more and more time at his house, he was covering more and more of her expenses for food. It is not possible, on the record before the court, given the passage of time, to quantify these amounts just as it is not possible as I stated earlier to determine with any precision the percentages of time Brooke spent with her father, particularly going back in time.

[115] For the purpose of determining whether there was blameworthy conduct, however, I am satisfied that Mr. Noble was not privileging his own interests over those of his child. This arrangement evolved over time and it is clear that Brooke and her needs have always been of central concern to him. I am unable to find that his conduct privileged his own interests over his child’s right to an appropriate amount of support.

[116] I am satisfied that he was paying more than the original order contemplated both directly and indirectly, and that Brooke was living more and more with him. Moreover, I am satisfied on the evidence I heard that Mr. Noble placed great priority on the interests of his daughter. He provided great support to her extracurricular activities and interests from music, horseback riding to other activities. I emphasize that I am not finding that his contributions were commensurate with what his guideline contributions should have been over the years. Nor am I finding that they were not.

[117] Neither parent has been well-off in terms of assets. Neither owns a home. Ms. Lyle has had a series of jobs, though it appears that in recent years, she has not been out of work for any significant period. She frequently works on contracts and so her income by the end of the year is often more than it looks earlier in the year.

[118] Mr. Noble lives in a rented apartment and his financial statement discloses very little in assets. He filed a consumer proposal in 2009 providing for a payments totaling $27,750, payable through an initial $750 payment and then $450 monthly for 5 years. This amount has only recently been paid off.

[119] On balance, I find that there is no evidence to suggest that this was a father who was deliberately evading child support in order to spend money on himself. There was no shred of suggestion of exotic personal travel, or expensive clothes, for example.

[120] As I have indicated, I do not accept Ms. Lyle’s evidence that she was not aware of Mr. Noble’s increased income over the years. These parents, in my view, were aware of their respective financial circumstances and earnings, at least in a general sense. Mr. Noble believed that he was satisfying his responsibilities and contributing to Brooke’s support to the best of his ability, and that he was relying on the evolving arrangements and understandings that had developed over the years. He had a reasonably held belief, given all these factors, that he was meeting his support obligations as they had evolved over the years to reflect the reality of the child’s circumstances: See D.B.S., at para. 108. The mere fact that, in retrospect, he might have been required to pay more child support, had Ms. Lyle sought it earlier, is not sufficient to establish blameworthy conduct on his part.

[121] In summary, I am unable to find that this is a case in which blameworthy conduct on the payor’s part weighs in favour of a retroactive award.

Do the circumstances of the child support a retroactive award?

[122] This factor is explained at para. 110 of D.B.S.:

A retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. Parents must endeavour to ensure that their children receive the support they deserve when they need it most. But because this will not always be the case with a retroactive award, courts should consider the present circumstances of the child — as well as the past circumstances of the child — in deciding whether such an award is justified.

[123] This factor does not support a retroactive award in the present case. To begin with, a retroactive award will not assist the child in her present circumstances as she is not living with her mother. In addition, a consideration of Brooke’s past circumstances does not justify an award because, in my view, there is no evidence that Brooke suffered in any way from any failure of Mr. Noble to pay guideline child support. That is because, as I have already reviewed, both parents, but Mr. Noble in particular, were committed to ensuring that her needs were met. No evidence was led to suggest that Brooke had unmet needs as a result of the level of child support that Mr. Noble was paying. There was no evidence that Ms. Lyle’s accommodation was unsuitable for a child or that she was required to live in a neighborhood that was less secure than would have otherwise been the case.

[124] In addition, as Brooke spent more and more time at her father’s house, she benefitted more and more from whatever resources he had. There is no suggestion that Brooke suffered from a generally lower standard of living than her father’s income justified. This is not a case where the payor was living a lavish lifestyle while the child was doing without.

[125] A retroactive award would risk affecting Brooke’s present circumstances as it will affect his ability to contribute to her support. This is only a relevant consideration to the extent that she continues to be a child of the marriage. Now that she has turned eighteen, she will only be a child of the marriage (for practical purposes) if she continues with her studies. A retroactive award to Ms. Lyle will not affect Brooke’s present circumstances as she is living with her father.

Would a retroactive award cause hardship to the payor parent?

[126] The final factor to be considered is hardship to the payor parent. At para. 115 of D.B.S., Bastarache J. explains the rationale for this consideration:

There are various reasons why retroactive awards could lead to hardship in circumstances where a prospective award would not. For instance, the quantum of retroactive awards is usually based on past income rather than present income; in other words, unlike prospective awards, the calculation of retroactive awards is not intrinsically linked to what the payor parent can currently afford. As well, payor parents may have new families, along with new family obligations to meet. On this point, courts should recognize that hardship considerations in this context are not limited to the payor parent: it is difficult to justify a retroactive award on the basis of a “children first” policy where it would cause hardship for the payor parent’s other children. In short, retroactive awards disrupt payor parents’ management of their financial affairs in ways that prospective awards do not. Courts should be attentive to this fact.

[127] Mr. Kary emphasized the fact that Mr. Noble’s line 150 income reached $100,000 in 2010. While that is true, it has not reached that level since. His 2011 income was $78,020 and his 2012 income was $82,217. More importantly, however, Brooke has been living with her father since 2013. She turned 18 in May and the evidence at trial was that she intends to live with her father and work for a year, with the intention of going to university after that. Mr. Noble indicated that he intends to continue to support Brooke to the best of his ability. He clearly hopes that she does attend university and clearly wants to support her financially if and when she does go, but a retroactive award would compromise his ability to do so, which constitutes hardship to him, and clear potential hardship to the child as well. The fact that he has only recently paid off his last debt arising from his consumer proposal underlines this reality.

[128] Thus, a retroactive award of child support to Ms. Lyle in these circumstances will cause hardship to the father and compromise his ability to continue to support her to the extent that she is a child of the marriage. This factor does not support a retroactive award.

[129] Mr. Kary submitted that refusing to allow Ms. Lyle’s motion for retroactive support would encourage payors to fail to disclose increases in income and thus disadvantage children for whose benefit child support is paid. I agree that courts must be vigilant as to the potential implications of their decisions, but in my view, the particular facts of this case drive the conclusion. In particular, I find that Ms. Lyle never sought the annual disclosure to which she was entitled. Had she done so, and had such disclosure still not been provided, the result might well have been very different. The finding that the parties’ arrangements with respect to custody and support had effectively evolved over the years from the O’Connell order would have been much less likely had Ms. Lyle provided any documentation to support her claims that she had sought annual disclosure, and that she had provided her own. In addition, the finding that she knew all along that Mr. Noble’s income had increased over the years, but did not seek a variation until early in 2013, is important to the result in this case. The fact that, shortly after Ms. Lyle filed the motion, Brooke moved completely to her father’s home where she has remained since, is also a distinctive aspect of this case.

[130] In short, I do not agree with Mr. Kary that the dismissal of Ms. Lyle’s motion carries dangerous policy implications. Rather, it is a case which turns on its own very particular facts.

Mr. Noble’s Claim for Retroactive Child Support

[131] I would not grant Mr. Noble’s claim for child support prior to the date of his motion to change upon which Kiteley J. granted interim child support. This claim was not pressed during trial and his motion to change seeks go forward support as of January 2015. The fairest result in all of these circumstances is to continue Kiteley J.’s interim award made on September 4, 2015.

Conclusion

[132] For these reasons, orders will issue as follows:

a. Ms. Lyle’s motion to change is dismissed; b. The order of Kiteley J. for child support payable by Ms. Lyle in the amount of $216 per month for Brooke born May 4, 1998 is to continue as long as she continues to be a child of the marriage; c. Section 7 expenses will be payable as of February 19, 2015 for the periods during which Brooke is a child of the marriage; d. The O’Connell J. order pertaining to child support payable by Mr. Noble shall be terminated effective August 15, 2013.

[133] The parties may make written submissions as to costs. These submissions are not to exceed 3 pages in length, in addition to any offers to settle and their respective bills of costs. Mr. Noble shall file his costs materials within 30 days of the release of these reasons.

[134] I am aware that Mr. Noble filed costs submissions earlier and before the release of this decision. I have not reviewed these because it is not appropriate to file costs submissions prior to knowing the result. I will ignore these if he submits revised materials within 30 days. Mr. Kary shall file his responding costs materials within 2 weeks following service of Mr. Noble’s costs materials.

Harvison Young J. Released: June 14, 2016

COURT FILE NO.: FS-13-18627 DATE: 20160614 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: DONALD WARWICK NOBLE Applicant – and – ROBYN BROOKE LYLE Respondent

REASONS FOR JUDGMENT Harvison Young J. Released: June 14, 2016