Court File and Parties

CITATION: Morden v. Pippy, 2016 ONSC 6886

COURT FILE NO.: FD 614/00

DATE: 2016/11/04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Michael Morden

Applicant

– and –

Linda Darlene Pippy

Respondent

Self-Represented

HEARD: August 2, 2016

THe Honourable madam justice Deborah L. Chappel

reasons for judgment

PART I: INTRODUCTION

[1] This was the hearing of a Motion to Change Final Order brought by the Respondent, Linda Pippy (“the Respondent”) on September 14, 2015. The Respondent seeks to terminate her obligation to pay child support pursuant to the order of Van Duzer, J. dated August 7, 2001 (“the order”) effective from the date when the order was made. Essentially, her request is that all arrears that have accumulated pursuant to that order be rescinded. In the alternative, she seeks an order reducing the arrears. The order required the Respondent to pay child support for the three children of her relationship with the Applicant, namely Brandon Morden, born February 14, 1992, Adam Morden, born January 29 1994, and Ryan Morden, born March 25, 1996, in the amount of $403.00 per month commencing August 1, 2001 based on her estimated annual income of $20,800.00.

[2] The Applicant was served with the Motion to Change Final Order and supporting materials on October 20, 2015, pursuant to an order for substitutional service dated October 2, 2015. He did not serve and file a Response to Motion to Change and did not appear in court. He is therefore in default.

[3] The Respondent owed the Applicant arrears of child support in the amount of approximately $64,000.00 as of the date of this hearing. She advanced three grounds in support or her request to either rescind the arrears in their entirety, retroactively reduce her child support obligation or reduce the arrears. First, she submitted that she did not have an income of $20,800.00 in 2001, and that she has earned very minimal income since that time. She advised that she has not been able to pay the child support ordered, and that she cannot reasonably pay off the arrears at this point given her low income. Second, she argued that the children are no longer entitled to child support. Finally, she alleged that the arrears should be rescinded on the ground that the Applicant did not permit her to have access with the children.

[4] The issues to be determined in this case are as follows:

1. Has the Respondent satisfied the threshold test for bringing this Motion to Change Final Order by establishing that evidence not available on the previous hearing has now become available?

2. Alternatively, has the Respondent met the threshold test by establishing that there has been a material change in circumstances since the order was made? With respect to this issue, there are two questions to determine as follows:

i. Has there been a material change in circumstances in that the Respondent has genuinely been unable to earn an income of $20,800.00 since 2001; and

ii. Has the material change in circumstances threshold been met by virtue of the children’s loss of entitlement to child support?

3. If the children have lost their entitlement to child support, when did each child’s entitlement cease, and what adjustments should be made to the order in response to each child’s loss of entitlement?

4. With respect to outstanding arrears of child support after making any necessary adjustments for the children’s loss of entitlement, should the court exercise its discretion to either rescind those arrears altogether or reduce them?

5. In determining how to exercise its discretion regarding arrears of child support, should the court take into consideration any evidence that the Applicant influenced the children against the Respondent and prevented her from seeing the children?

[5] For the reasons that follow, I have determined that the Respondent has satisfied the threshold test for bringing this Motion to Change Final Order by establishing that the children’s entitlement to support has ended. Specifically, I have concluded that Brandon’s entitlement to child support ended on June 30, 2009, that Adam’s entitlement ended on June 30, 2010 and that Ryan’s entitlement ceased on June 30, 2015. I have therefore amended the August 7, 2001 order to reflect these termination dates, and to adjust the amount of support payable by the Respondent when Brandon’s and Adam’s entitlement ceased. Apart from these adjustments, I have declined to make an order retroactively reducing the Respondent’s support obligation or rescinding or reducing the arrears owing pursuant to the order.

PART II: BACKGROUND AND OVERVIEW OF COURT PROCEEDINGS

[6] I heard oral evidence from the Respondent and her mother, Charlotte Pomerleau, at the hearing of this Motion to Change Final Order. I considered it necessary to allow oral evidence because of the very significant challenges I experienced in obtaining the information that I required from the Respondent to properly deal with this matter. I make the findings set out below based on the evidence contained in the Continuing Record and the oral evidence adduced at the hearing.

[7] The Applicant and the Respondent began to cohabit with each other in 1988, and were married in 1992. The children Brandon, Adam and Ryan are the only three children of their relationship. The parties separated in 1997, but neither of them have ever initiated divorce proceedings.

[8] The three children remained in the care of the Respondent from the date of the parties’ separation until approximately 2001. They went to live with the Applicant at that time because the Respondent was experiencing alcohol issues. The Applicant commenced an application for custody and child support soon after the children began to reside with him. The Respondent did not respond to that proceeding, and did not produce the required information regarding her income. The case proceeded on an uncontested basis in chambers before Van Duzer, J. on August 7, 2001. As already noted, on that date, Van Duzer, J. made an order requiring the Respondent to pay the Applicant child support in the amount of $403.00 per month, based on an estimated annual income of $20,800.00. Paragraph 3 of that order stipulated that the Respondent could within 30 days of being served with the order return the matter to court to review the amount of child support payable upon providing full financial disclosure. Paragraph 2 of the order directed the Respondent to provide the Applicant with copies of her Income Tax Return, Notice of Assessment and Notice of Reassessment for the preceding year by June 30^th each year.

[9] The Respondent testified that she moved around the time that the August 7, 2001 order was made, and that she did not receive the order at that point. She lost contact with the children and the Applicant for an extended period of time, but then asked the Applicant to return the children to her care in 2003. The Applicant refused to return the children to her and served the Respondent with copies of the final custody and child support orders that had been made in 2001. The Respondent testified that she attempted to secure legal representation to assist her in changing those orders, but that she was denied Legal Aid representation and could not afford to hire a lawyer. Accordingly, she never took any legal steps to alter the custody and child support orders.

[10] The Family Responsibility Office (“FRO”) experienced considerable difficulty enforcing the August 7, 2001 child support order. The Respondent testified that most of the amounts that the FRO enforced against her related to employment insurance benefits that she received over the years and GST and income tax refunds. The Director of FRO eventually suspended the Respondent’s driver’s licence in approximately 2007 in an effort to compel the Respondent to comply with the order. The Respondent continued to accumulate significant arrears notwithstanding this enforcement measure. The Respondent testified that sometime in 2015, the Director of FRO commenced a default proceeding against her. It was only in the face of that default proceeding that the Respondent finally commenced this variation proceeding.

[11] This case initially came before me in chambers on January 8, 2016 as an uncontested matter, since the Applicant did not serve and file a Response to Motion to Change. Upon reviewing the file, it was apparent that there was insufficient evidence before me to properly deal with the Respondent’s claims. In particular, the Respondent had not filed proof of her income since 2001 and had not adduced evidence regarding her attempts to maximize her income since 2001. In addition, there was no evidence to assist the court in determining how to exercise its discretion regarding arrears. Accordingly, I arranged for the Respondent to appear before me on March 2, 2016 for a hearing. The Respondent attended court on that date, and I advised her of the deficiencies in her materials. I set a further hearing date of April 25, 2016. In addition, I made a detailed order requiring the Respondent to serve and file an affidavit by March 31, 2016, to include the following:

1. Proof of her income since 2001;

2. A summary of her income earning activities since 2000;

3. Copies of any Records of Employment issued to her since 2001;

4. The reasons for her delay in bringing the Motion to Change;

5. Details regarding the children’s circumstances since 2001 that may be relevant to entitlement to support; and

6. Evidence relating to any hardship that would result to the Respondent if the arrears were not rescinded or reduced.

[12] This matter returned before me for a hearing on April 25, 2016. The Respondent advised at that time that she had sent a request to Canada Revenue Agency (“CRA”) for her historical tax records, but that she had not yet received them. I asked for a copy of the correspondence that she had sent to CRA requesting these records, and she advised that she did not have it with her. In addition, the Respondent had not adduced the other evidence that I had ordered her to produce on March 2, 2016. Accordingly, I adjourned the hearing once again to June 27, 2016, and ordered that the Respondent file the affidavit that I had previously ordered, as well as a further affidavit including the following information:

1. Details of her efforts to obtain employment or increase her income since 2001, and any reasons why her income earning ability was impaired, with documentary evidence in support of any such reasons;

2. An up-to-date FRO Director’s Statement of Account detailing the status of her child support arrears;

3. Efforts that she had made to address and resolve her child support arrears prior to the commencement of this Motion to Change Final Order;

4. Details of her efforts to maintain contact with the children, and any available documentary evidence of such efforts; and

5. An explanation if she was unable to comply with any aspect of my disclosure orders.

[13] When the hearing of this matter resumed before me on June 27, 2016, the Respondent had not filed the affidavits that I had ordered her to file. She alleged that she had prepared an affidavit, tried unsuccessfully to file it with the court and then lost it. Her explanation was not credible in the least. She had no reasonable explanation for her alleged inability to file the affidavit when she had attended court to do so. I gave her the option of either proceeding on the basis of the limited evidence before the court or adjourning the matter once more to allow her further time to file the necessary evidence. She requested an adjournment. Accordingly, the matter was again adjourned to August 2, 2016, and was marked peremptory. I ordered the Respondent to file the disclosure that I had ordered by July 25, 2016.

[14] The hearing finally proceeded on August 2, 2016. The Respondent had sworn a one page affidavit on July 25, 2016 in response to my disclosure orders. The affidavit failed to address most of the items that I had ordered her to address. I heard oral evidence from the Respondent and her mother in order to obtain the information that I required.

PART III: ANALYSIS

STATUTORY FRAMEWORK AND GENERAL PRINCIPLES ON A MOTION TO CHANGE CHILD SUPPORT

[15] Although the Applicant and Respondent were married, neither of them has initiated divorce proceedings. Accordingly, the legislation that applies to this Motion to Change is the Family Law Act, R.S.O. 1990, c. F-3, as am. Section 37 of the Act provides that an application to vary an order for child support may be made by a parent of a dependant named in the order to be varied. The test to be applied on a Motion to Change child support under the Act, and the powers of the court on such a motion, are set out in sections 37(2.1) of the Act, which provides as follows:

37. Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

[16] The powers of the court on a Motion to Change child support are very broad. The court can change the terms of the order, either prospectively or retroactively, and suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis. The court’s authority with respect to arrears is similarly broad, and includes the power to rescind the arrears and interest owing either entirely or to reduce the amount of arrears payable. The powers of the court in a variation proceeding also include ordering appropriate set-offs (Campbell v. Chappel, 2006 CarswellNWT 28 (S.C.)).

[17] A Motion to Change child support is not an appeal of the original order. The court hearing the Motion must assume that the existing order accurately addressed the financial needs of the children and took into consideration the appropriate legal considerations. The correctness of the previous order should not be reviewed on the motion (Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 (S.C.C.), at p. 688-688; Gray v. Rizzi, 2016 ONCA 152 (C.A.), at para. 26).

[18] Section 37(2.1) of the Family Law Act reinforces the general principle that a Motion to Change is not an appeal of the original order by delineating two alternative threshold issues that must be established in order to bring such a motion. It stipulates that the moving party on a Motion to Change must as a preliminary matter establish one of the following:

1. That evidence that was not available at the hearing respecting the order has now become available; or

2. That there has been a change in circumstances within the meaning of Guidelines since the order was made.

[19] In determining the type of change in circumstances that is sufficient to ground a child support variation claim under the Family Law Act, it is useful to draw upon the case-law respecting child and spousal support variation proceedings under both the Family Law Act and the Divorce Act, R.S.C. 1985, c. 3, (2^nd Supp), as amended, since all such proceedings require the court to consider whether a change in circumstances has occurred. With respect to the “change in circumstances” criterion, the Ontario Court of Appeal has held in the context of a variation proceeding under the Divorce Act that the change(s) that the moving party relies on must have occurred since the existing order was made. A party who did not participate as required in the previous proceeding cannot later meet the threshold test for a variation proceeding by relying on changes in circumstances that occurred prior to the making of the existing order. This principle applies even if the existing order includes a provision relating to arrears of support that accumulated during the period pre-dating the making of that order (Gray v. Rizzi).

[20] Section 14.1 of the Guidelines is relevant to the issue of whether a change in circumstances has occurred that will support a variation proceeding. It provides that where the amount of child support set out in the existing order includes a determination made in accordance with the Tables under the Guidelines, any new circumstances that would result in a different order for the support of the child will constitute a change within the meaning of section 37(2.1) of the Act. Accordingly, a change in the payor’s income or evidence that the child is no longer entitled to child support under the Family Law Act would satisfy the threshold test.

[21] The case-law has held that a change in circumstances will only meet the threshold test for a variation proceeding if it is “material,” both in terms of the nature of the change and its duration. The concept of “material change in circumstances” must be viewed flexibly, so as to accommodate a host of factual developments that may have evolved since the existing order was made (Brown v. Brown, 2010 NBCA 5, 2010 CarswellNB 30 (N.B.C.A.); Willick). The court must consider the unique facts of every case and determine whether the alleged change was “significant and long lasting; whether it was real and not one of choice” (Brown; Haisman v. Haisman, 1994 ABCA 249, 1994 CarswellAlta 179 (C.A.), leave to appeal to the S.C.C. refused, [1995] 3 S.C.R. vi (S.C.C.)). Trivial, insignificant or short-lived changes will not justify a variation (Haisman; Hickey v. Hickey (1999), 1999 CanLII 691 (SCC), 46 R.F.L. (4^th) 1 (S.C.C.); Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.)).

[22] Where a payor parent relies on the child’s loss of eligibility for support to meet the threshold test for variation, the proceeding is essentially a matter of giving effect to the intent that the original order should only continue for so long as eligibility existed (Erskine v. Erskine, 2011 CarswellBC 1888 (S.C.)). If the proceeding is based on other alleged changes in circumstances, the changes must be such that if they had been known at the time the order was made, they would likely have resulted in different terms. The corollary of this principle is that if the circumstance relied upon to meet the threshold test was known or contemplated when the order was made, it generally cannot be relied on to meet the threshold test for a variation (Willick, at para. 688; B.(G.) v. G.(L.), 1995 CanLII 65 (SCC), [1995] 3 S.C.R. 370 (S.C.C.); L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775 (S.C.C.), at para. 44; Stevenson v. Smit, 2014 CarswellOnt 9001 (C.A.); Mason v. Mason, 2016 ONCA 725 (C.A.); Dedes v. Dedes, 2015 CarswellBC 1167 (C.A.)). However, the key consideration in determining whether there has been a change in circumstance for the purposes of a variation proceeding is whether the circumstance was factored into the decision-making at the time the order or agreement was made. A circumstance that the parties were aware of and contemplated during negotiations or court proceedings relating to the existing order may not have been built into the framing of the agreement or order for any number of reasons. If the evidence indicates that the circumstance was taken off the table as a consideration in crafting the order or agreement, it may later qualify as a change in circumstance in a variation proceeding (Stones v. Stones, 2004 BCCA 99 (C.A.). Furthermore, the fact that a change was objectively foreseeable does not necessarily mean that it was contemplated by the parties and factored into the agreement they reached regarding support (L.M.P.; Dedes).

ISSUE #1: HAS THE RESPONDENT MET THE THRESHOLD TEST BY ESTABLISHING THAT EVIDENCE NOT AVAILABLE AT THE PREVIOUS HEARING IS NOW AVAILABLE?

[23] I turn to the issue of whether the Respondent has met the threshold test for bringing this Motion to Change child support by showing that evidence not available at the previous hearing is now available. As previously indicated, the Respondent did not participate in the hearing in which the existing order was made, and did not comply with her financial disclosure obligations. However, her request for a rescission or reduction of arrears is based largely on her position that Van Duzer, J. did not have her correct income information before him when he made the order, and that she is now providing that information for the court. The important question this case raises is whether a support payor who dodged their financial disclosure obligations in a previous child support proceeding can later meet the threshold test for a variation by deciding to finally offer up that income information. I conclude that they cannot, and that the Respondent has therefore not met the threshold test on this basis.

[24] In reaching my decision on this issue, I have considered the case of Trembley v. Daley, 2012 ONCA 780 (C.A.). The facts in that case were somewhat analogous to those in this case, in that the child support payor deliberately withheld income disclosure at the original trial. Despite this non-disclosure, he obtained an order on a subsequent Motion to Change under the Family Law Act reducing the arrears that the original trial judge had fixed, based on the conclusion of the judge hearing the Motion to Change that the arrears calculation had been founded upon incorrect information about the payor’s income. The Motions judge made this adjustment despite having found that the payor had deliberately evaded his income disclosure obligations for the period predating the existing order, and was simply “seeking redress for his own foolishness” on the Motion to Change. The Ontario Court of Appeal upheld the trial judge’s decision. However, it is important to emphasize that in doing so, the Court of Appeal did not find that the payor’s decision to now conveniently offer up his income information satisfied the threshold test on a variation proceeding of showing that “evidence not available on the previous hearing has become available.” In that case, the Motions judge had concluded that the threshold test had been satisfied as a result of a material change in circumstances since the existing order was made. Specifically, she found that the payor had suffered catastrophic injuries to his fingers that had seriously impeded his ability to earn income. Having made a finding that the threshold test had been met as a result of this change in circumstances, the Motions judge then went on to consider the evidence of the payor’s actual historical income as part of the second stage of the analysis, to determine the appropriate order that should be made in the variation proceeding having regard for all of the circumstances of the case.

[25] As a matter of common sense and sound legal principle, a payor parent who deliberately failed to provide pertinent information about their income in the proceeding in which an existing order was made cannot later come back and meet the threshold test for variation under the Family Law Act by suddenly offering up the income information and saying that the evidence is now available. To allow payors to cross the threshold in such circumstances would encourage the concealment of income information in child support proceedings. It would send a message to payors who take their chances by withholding critical income information in court proceedings that if they do not like the judge’s ultimate decision about their income, they can get a second chance by coughing up their financial information at a later date and having the matter revisited. This type of outcome would be extremely prejudicial to the interests of the child, the recipient parent and the administration of justice as a whole. I find support for my conclusion on this point from the Ontario Court of Appeal’s decision in Gray v. Rizzi. That case involved an appeal of an order made pursuant to section 17 of the Divorce Act varying the original trial judge’s child support order. The Court of Appeal noted that the Motions judge who had heard the Motion to Change had concluded that the material change in circumstances threshold had been satisfied by the payor since he had decided to finally disclose his income information that he had failed to disclose during the previous proceedings. The Court of Appeal concluded that a payor’s change of heart respecting disclosure of pertinent income information on a Motion to Change child support does not qualify as a change in circumstances for the purposes of the threshold test in variation proceedings. The court emphasized that the financial disclosure rules set out in the Family Law Rules, the applicable child support legislation and the relevant Child Support Guidelines are key to the effective management and determination of child support claims, and that incentives for litigants to evade their disclosure obligations must therefore be eliminated. It emphasized that “[t]o allow a party who ignores his or her financial disclosure obligations to later satisfy the requirement and argue that the late disclosure constitutes a material change in circumstances would eviscerate the financial disclosure regime” (at para. 34). This reasoning applies equally to the alternative threshold test that information not available at the previous hearing is now available.

ISSUE #2: HAS THE RESPONDENT MET THE MATERIAL CHANGE IN CIRCUMSTANCES THRESHOLD BY ESTABLISHING THAT SHE HAS BEEN UNABLE TO EARN THE INCOME OF $20,800.00 IMPUTED TO HER IN 2001?

A. Overview

[26] As I have noted above, Van Duzer, J. imputed an income of $20,800.00 to the Respondent for the purposes of the August 7, 2001 order due to the Respondent’s failure to respond to the court proceedings and to provide disclosure respecting her income. The second issue to be determined in this case is whether there has been a change in circumstances in that the Respondent has genuinely been unable to earn an income approximating $20,800.00 since the order was made. The Respondent has not satisfied me that she has been unable to earn this level of income, and therefore I conclude that she has not met the threshold test for variation on this ground.

B. The Relevant Law Respecting Income Determination

1. General Principles

[27] Sections 15 to 20 of the Guidelines are the starting point for the calculation of a party’s income for child support purposes. Section 15(1) provides that subject to section 15(2), a party’s annual income is determined by the court in accordance with sections 16 to 20. Section 15(2) stipulates that where both parties agree in writing on the annual income of a party, the court may consider that amount to be the party’s income for the purposes of the Guidelines if it thinks that the amount is reasonable.

[28] Section 16 of the Guidelines provides that subject to sections 17 to 20, a party’s annual income is determined using the sources of income set out under the heading “total income” (line 150) in the T1 General Form issued by the Canada Revenue Agency, and by then making the adjustments provided for in Schedule III to the Guidelines. Federal child-related tax benefits and GST/HST tax credits for children are not included in the calculation of income for the purposes of child support (Guidelines, Schedule I, para. 6). Section 16 does not require the court to blindly use the previous year’s total income as reported by the party in the T1 General Form for the previous year as a basis for determining ongoing child support. Rather, the goal is generally to ascertain the payor’s income based on the sources set out in the T1 form (Coghill v. Coghill, 2006 CanLII 21778 (ON SC), [2006] O.J. No. 1489 (S.C.J.)). By virtue of section 2(3) of the Guidelines, the court is required to determine issues relating to income based on the most current information available. This requires the court to ascertain the payor’s estimated current annual income in the year in which the child support order is being made (Morrissey v. Morrissey, 2015 PECA 16 (C.A.); Nelson v. Nelson, 2005 CarswellNS 18 (S.C.); Kimla v. Golds, 2005 CarswellOnt 1000 (S.C.J.); Bonthron v. Bonthron, 2004 CarswellOnt 96 (S.C.J.); Lemmon v. Lemmon, 2004 CarswellOnt 771 (S.C.J.), additional reasons at 2004 CarswellOnt 1541 (S.C.J.)). One exception to this principle is where the payor’s current income situation is uncertain or speculative, in which case fairness to the payor may require the court to rely on historical income information (Morrissey). Another exception is where there is an agreement or order in effect that stipulates that income for the purposes of prospective child support should be based on the annual income for the previous year.

2. Imputation of Income

[29] A critical issue in this case is whether the court should impute income to the Respondent for the years since 2001. The Guidelines provide that the court may impute income to a party in appropriate circumstances. The relevant section of the Guidelines is section 19, which provides as follows:

Imputing income

19. (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(b) the parent or spouse is exempt from paying federal or provincial income tax;

(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;

(e) the parent’s or spouse’s property is not reasonably utilized to generate income;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses from income;

(h) the parent or spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the parent or spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust. O. Reg. 391/97, s. 19 (1); O. Reg. 446/01, s. 6.

Reasonableness of expenses

(2) For the purpose of clause (1) (g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada). O. Reg. 391/97, s. 19 (2).

[30] Income imputation provides a means by which the court can ensure that parents meet their joint and ongoing obligation to support their children (Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731, 2002 CarswellOnt 3228 (C.A.), additional reasons 2003 CanLII 48241 (ON CA), 2003 CarswellOnt 17 (C.A.); Tillmans v. Tillmans, 2014 ONSC 6773 (S.C.J.); B.(G.T.) v. B.(Z.B.), 2014 ONCJ 382 (O.C.J.)). The list of circumstances set out in section 19 is not exhaustive and therefore does not circumscribe the court’s general discretion to impute income in other situations where it considers it appropriate to do so. These other situations need not be analogous to the circumstances listed in section 19 in order to provide a foundation for imputation of income (Bak v. Dobell, 2007 ONCJ 170, [2007] O.J. No. 1498 (C.A.); Riel v. Holland, 2003 CanLII 3433 (ON CA), [2003] O.J. No. 3901, 67 O.R. (3d) 417 (C.A.)). Regardless of the basis upon which income is imputed, the amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute (Korwin v. Potworowski 2007 CarswellOnt 6852 (C.A.)).

[31] The Ontario Court of Appeal addressed the issue of imputation of income pursuant to section 19(1)(a) of the Guidelines on the basis of intentional unemployment or under-employment in Drygala. The following general principles derive from that decision and other cases which have since considered section 19(1)(a):

1. Section 1 of the Guidelines stipulates that one of the objectives of the Guidelines is to establish a fair standard of support for children so as to ensure that they benefit from the financial means of both parents after separation. To this end, there is a duty on the part of the payor to actively seek out reasonable income-earning opportunities that will maximize their earning potential so as to meet the needs of their children. If they fail to do so, this may provide grounds for the court to impute income to them Drygala; L.(N). v. P.(B.), 2000 CanLII 22516 (ON SC), 2000 CarswellOnt 2487 (O.C.J.); Thompson v. Thompson, 2013 ONSC 5500 (S.C.J.); Scott v. Chenier, 2015 ONSC 7866 (S.C.J.)).

2. A finding of deliberate under-employment or unemployment does not require evidence of bad faith on the part of the payor parent or an attempt on their part to thwart support obligations. A parent is intentionally under-employed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. The parent is intentionally unemployed when they choose not to work when capable of earning an income (Drygala.; Smith v. Smith, 2012 ONSC 1116 (S.C.J.); Tillmans; Scott).

3. In determining whether a party is intentionally under-employed or unemployed, the court should consider the party’s capacity to earn income in light of their age, education, health, work history and the availability of work that is within the scope of the party’s capabilities (Marquez v. Zapiola, 2013 CarswellBC 3038 (B.C.C.A.); Scott; Lawson v. Lawson, 2006 CanLII 26573 (ON CA), 2006 CarswellOnt 4789 (C.A.)).

4. A self-induced lack of income or reduction of income with no realistic prospect of future financial advancement is not a basis upon which to avoid or reduce child support payments. Accordingly, the court may find the party to be deliberately under-employed and impute income where the party has persisted in un-remunerative employment or self-employment, or where they have pursued unrealistic or unproductive career aspirations (Hanson v. Hanson, 1999 CanLII 6307 (BC SC), 1999 CarswellBC 2545 (B.C.S.C.); L.(N). v. P.(B.); Drygala; Donovan v. Donovan (2000), 2000 MBCA 80, 190 D.L.R. (4^th) 696 (Man. C.A.); Lawson; Blake v. Blake, 2000 CarswellOnt 2477 (S.C.J.); Tillmanns; Scott).

5. The court may also impute income to a party on the basis of deliberate under-employment or unemployment if the party quits their employment for selfish or bad faith reasons (Ronan v. Douglas Walsh (1994), 1994 CanLII 3826 (ON CJ), 5 R.F.L. (4^th) 235 (Ont. Prov. Div.), or if they engage in reckless behaviour which affects their income-earning capacity (Rogers v. Rogers, 2013 ONSC 1997, 2013 CarswellOnt 4068 (S.C.J.); Costello v. Costello, 2012 ONCJ 399 (O.C.J.); Aboagye v. Sakyi, 2012 ONCJ 56 (O.C.J.); Tillmanns; Scott).

6. When a party experiences an involuntary loss of employment, they may be given a “grace period” to investigate options and seek out employment in their field at a comparable rate of remuneration before income will be imputed to them (Lavrinenko v. Lavrinenko, 2014 ONSC 4097 (S.C.J.); Tillmanns). However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children (Barta v. Barta, 2005 CarswellOnt 74 (S.C.J.); M. (S.D.) v. M. (K.F.), 2004 CarswellBC 70 (S.C.); Quintel v. Quintel, 1997 CarswellOnt 3213 (Gen. Div.); D. (P.) v. D. (C.), 2011 CarswellNB 442 (Q.B); Scott).

7. Even if the court determines that the payor parent is deliberately under-employed or unemployed, the court has the discretion to decide whether or not to impute income to them. This decision will turn on the court’s overall assessment of the reasonableness of the payor’s decisions and actions in relation to their income. If an employment decision results in a significant reduction of income, it must be justified in a compelling way (Riel; B. (G.T.); Rilli v. Rilli, 2006 CanLII 34451 (ON SC), 2006 CarswellOnt 6335 (S.C.J.); Tillmanns; Scott).

8. Finally, in determining the amount of income to impute on the basis of deliberate under-employment or unemployment, the court must consider what is reasonable in the circumstances of the particular case. The factors that the court is required to consider include the age, education, experience, skills and health of the payor, their past earning history and the amount of income that the payor could reasonably earn if they worked to capacity (Drygala; Lawson; West v. West, 2001 CanLII 28216 (ON SC), [2001] O.J. No. 2149 (S.C.J.); Tillmanns; Scott).

[32] The question of onus with respect to imputation of income is an important one. The decision of Pazaratz, J. in Trang v. Trang, 2013 ONSC 1980, 2013 CarswellOnt 4069 (S.C.J.) represented a significant development in this area, as it clarified that different principles apply regarding the onus issue in original proceedings as compared to variation proceedings. In original proceedings, the onus is on the party requesting the court to impute income to establish the grounds for this request (Homsi v. Zaya, 2009 ONCA 322, 2009 CarswellOnt 2068 (C.A.), additional reasons 2009 CarswellOnt 3112 (C.A.); Drygala; Morrissey). The support payor has an obligation to disclose all information that is relevant to their position respecting their income, which includes full and frank disclosure of all information required to properly assess their income, their income earning potential and efforts which they have made to maximize their earnings. However, as Pazaratz, J. emphasized in Trang, once a court imputes an income to a party, the onus no longer rests with the support recipient in a variation proceeding based on alleged changes to the payor’s income to establish why income should continue to be imputed on the same basis as in the previous proceeding. In these circumstances, the court has already made a determination of fact respecting income, and the onus therefore shifts to the payor to establish that their income should now be calculated in a different way. A payor who argues that an imputed income is no longer appropriate must go further than simply establishing their subsequently declared income for income tax purposes. They must adduce evidence of changed circumstances which establish one of the following:

1. That it is no longer necessary or appropriate to impute income, and the payor’s representations as to income should now be accepted; or

2. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate (at para. 32).

[33] In Trang, Pazaratz, J. also addressed how the court should approach a situation where the income previously imputed to the party occurred in the face of conflicting income information set out in income tax documentation. He emphasized that if the judge who imputed income in the first instance did so on the basis that the party’s Income Tax Returns were not reflective of their true income, ‘there should be a presumption that so long as the payor maintains the same business activities and accounting practices, subsequent tax returns will be equally unreliable” (at para. 57).

[34] Finally, in Trang, Pazaratz, J. addressed how the court should respond to situations where the payor argues on a Motion to Change support that they never actually earned the income that was previously imputed to them. He emphasized that when a court imputes income, this is a determination of fact. As he stated in reference to income imputation:

It’s not an estimate. It’s not a guess. It’s not a provisional order awaiting better disclosure or further review. It is a determination that the court had to calculate a number, because it didn’t feel it was appropriate to rely on- or wait for- representations from the payor (at para. 51).

[35] As Pazaratz, J. noted, if a party wishes to challenge the imputation of income in earlier proceedings, the appropriate remedies are an appeal or a motion to set aside the order. However, if the party proceeds by way of a Motion to Change, “they must face the presumption that the original order was correct - and the original imputation of income was correct” (at para. 60).

C. Analysis

[36] As discussed above, the onus is on the Respondent in this Motion to Change to establish that it is inappropriate to continue to impute an annual income to her of at least $20,800.00 since 2001. I find that she failed to adduce the necessary evidence to support such a finding. It is important to note that she was given many opportunities to do so. As I have already indicated, I made very detailed orders on January 8, 2016 and April 25, 2016 requiring her to serve an affidavit that addressed all of the information that I required to make a determination of her income since 2001, but she failed to comply with most aspects of both orders. When she appeared before me for a hearing on June 27, 2016, she had still not provided most of the information that I had ordered her to disclose. Nonetheless, I gave her a further opportunity to provide the necessary information, and adjourned the hearing to August 2, 2016. As of that date, there was still substantial non-compliance with my disclosure orders.

[37] I make the findings set out below based on the evidence that I received from the Respondent and applying the principles relating to imputation of income. Before turning to the particulars of the Respondent’s annual income since 2001, however, it is necessary to comment on a statement that the Respondent made in her affidavit sworn July 25, 2016 that her failure to earn any significant income from 2001 onward was attributable in part to the fact that she was depressed about not being able to see her children and turned to alcohol to cope. In my order dated April 25, 2016, I directed the Respondent to provide any documentary evidence within her possession or control respecting any reasons why her ability to earn income was impaired from 2001 onward. She did not adduce any documentary evidence supporting her allegation that she suffered from depression or alcoholism during this period of time. Furthermore, having regard for her obligation to support her three children, it would have been incumbent upon her to seek out assistance and treatment to address these issues. The Respondent did not adduce evidence respecting any such efforts. For these reasons, I find that the Respondent has not established on a balance of probabilities that her ability to earn income was impaired due to depression or alcoholism.

2001

[38] The Respondent did not adduce any documentary evidence respecting her income for 2001. She testified that prior to 2001, she had worked for a courier company that the Applicant’s mother owned, and that she was responsible for doing dispatch work and managing payroll, receivables and payables. She then worked for a company that the Applicant established, doing similar work. After Brandon was born, she did similar work for another courier company for a period of approximately six months. She stopped working sometime during her pregnancy with Adam. From 1997 until 2001, she had brief stints of employment doing bookkeeping work. When the children began to reside with the Applicant in approximately June 2001, the Respondent began to work as a server at the Engine House, where she says she earned less than minimum wage. She had a very poor recollection of the income that she earned in this position. Her best estimate was that she worked approximately 25 to 30 hours per week, and that she earned approximately $270.00 per week. She stated that she did not earn very much in tips since the Engine House was not a very good place for tips. The evidence that the Respondent adduced respecting her income from the Engine House was extremely sketchy and deficient. However, even if I accept that she only earned $270.00 per week, this would translate into an annual income of approximately $14,400.00. She was only working part-time at this position, and her evidence did not satisfy me that she could not have found additional work to supplement her income so as to earn at least $20,800.00.

2002

[39] The Respondent did not file any documentary evidence regarding her income in 2002. She testified that she did not work very much that year because she was living with a man who did not want her to work and told her that he would support her. She indicated that she did some occasional work in various bars, but that her partner would show up at these establishments, cause a scene and she would then lose her job.

[40] While it is unfortunate that the Respondent found herself in what appears to have been a very controlling relationship in 2002, she has not established that an income of less than $20,800.00 should be attributed to her for that year. She had a legal obligation to pursue all reasonable opportunities to earn and maximize her income in order to support her children. I find that she failed to do so, and that she could have earned an income of at least $20,800.00 working in either bookkeeping positions, the hospitality industry or other comparable settings.

2003

[41] The only documentary evidence that the Respondent filed respecting her 2003 income was a T4 slip issued to her by 855318 Ontario Inc., showing income of $5,454.00. The Respondent testified that this company operated under the name of BC Sports Bar, and that she worked there as a bartender for approximately 6 or 7 months in 2003. Her evidence was that she earned an hourly wage of approximately $7.50 plus tips, which she estimated totaled between $10.00 and $20.00 per day. Again, the Respondent failed to establish that an income of less than $20,800.00 should be attributed to her for the year 2003. She failed to produce her Income Tax Return, Notice of Assessment or Notice of Reassessment for this year. She stated that she only worked at BC Sports Bar for 6 or 7 months because the bar closed down, but she failed to adduce any credible evidence of efforts to find work with a similar or higher rate of remuneration. Given that she did not have the children in her care, she had the ability to work on a full-time basis, with overtime hours. It is reasonable to assume that she earned tips of at least $20.00 per day working as a bartender. Assuming that she worked 40 hours per week, six days a week, I find that she could have easily earned a base income of at least $15,600.00 per year and tips totaling at least $6,250.00 per year, for a total annual income of approximately $21,850.00.

2004

[42] The only documentary evidence that the Respondent filed respecting her 2004 income was a T4 slip issued by 855318 Ontario Inc., the same company that she said she worked for in 2003. This raises serious questions regarding the credibility of her evidence that she stopped working for this company in 2003 because BC Sports Bar closed down. When I questioned the Respondent about this, she indicated that she may have in fact continued to work for BC Sports Bar for a period of time in 2004, and that she then worked at another bar called the Nutty Parrot. She was not sure if the Nutty Parrot operated under the same company as BC Sports Bar. She testified that the Nutty Parrot also closed down at some point in 2004, that she looked for other work, but that she was “not qualified.” She did not provide any details regarding her job search efforts.

[43] The Respondent’s evidence regarding her total 2004 income was incomplete and unconvincing. She contradicted herself regarding her employment with BC Sports Bar, and did not provide a satisfactory explanation as to why she could not earn an income of at least $20,800.00. Accordingly, I conclude that it is reasonable to continue to impute that income to her for 2004.

2005

[44] The only documentary proof that the Respondent filed respecting her 2005 income was a T4 slip issued by Apple Hospitality Limited Partnership, showing income of $1,354.32, and a T4 slip from 1614095 Ontario Inc., showing income of $2,647.00. The total income from these two slips is only $4,001.32. The Respondent testified that she worked at Applebee’s Restaurant as a breakfast cook from the late summer of 2005 until the end of that year. In addition, she worked as a bartender at Stephanie’s Bar and Cuisine. She testified that she earned $9.00 per hour at Applebee’s, and $7.50 per hour plus tips at Stephanie’s Bar and Cuisine. The total income information from the two T4 slips that she provided does not correspond with the evidence that she gave about her income earning activities in 2005. Again, the Respondent’s evidence regarding her 2005 income was incomplete, inconsistent and unclear. She did not satisfy me that an income of $20,800.00 should not be imputed to her for that year. To the contrary, based on her testimony, I find that she could have easily earned at least this amount holding down her two jobs or similar work.

2006

[45] The Respondent testified that in 2006, she engaged in the following income earning activities:

1. For approximately the first four or five months of the year, she worked at Applebee’s as a cook from Monday until Friday, earning $9.00 per hour. She worked between 35 and 40 hours per week.

2. In addition, for the first four or five months, she continued to work at Stephanie’s Bar and Cuisine on weekends, earning $7.50 per hour plus tips. She indicated that her average hourly wage at Stephanie’s including tips was approximately $10.00.

3. From approximately May or June until August or September, she worked full time at Stephanie’s Bar and Cuisine, approximately 35 hours per week, earning the same wage. She testified that she was laid off from Stephanie’s and could not find work for the remainder of the year. She did not provide any specifics regarding her job search efforts, other than to state that she applied to other bars and restaurants.

[46] The only documentary evidence that the Respondent produced regarding her 2006 income was a T4 slip from Apple Hospitality Ltd. Partnership, showing income of $8,806.40, and a T4 slip from Ruby Wright showing income of $3,420.00. When I questioned her as to who Ruby Wright was, she stated that she was the owner of Stephanie’s Bar and Cuisine. The total income from the two T4 slips is $12,226.40. The slip from Apple Hospitality corresponds generally with her evidence regarding her employment with Applebee’s in 2006. However, based on her evidence respecting her employment at Stephanie’s in 2006, I estimate that she earned income of approximately $7,200.00 from that source in 2006. I calculated this amount assuming that for the first 5 months of 2006, she worked approximately one full day a week earning $10.00 per hour (approximately $80.00 per week) and for approximately four months, she worked on average 35 hours per week earning $10.00 per hour ($350.00 per week). Accordingly, I estimate that she earned a total of approximately $16,006.40 from Applebee’s and Stephanie’s in 2006. The Respondent testified that she did not work for approximately 3 months at the end of 2006. She did not adduce any credible evidence of any concerted efforts on her part to find work at a reasonable rate of remuneration during that period of time. I conclude that she should have been able to find full-time work, with overtime, at the rate of at least $10.00 per hour, which would have yielded her an additional income of approximately $5,280.00. This would have brought her total income for 2006 to approximately $21,286.00.

2007 to 2011

[47] The Respondent testified that she did not work from 2007 until 2011. She stated that the FRO suspended her driver’s licence in 2007 in an effort to enforce her arrears of child support, and that this made it difficult for her to find work. She filed Income Tax Return Information-Regular forms from the Canada Revenue Agency for these years, which confirmed that she earned minimal employment insurance benefits in 2007, and that her only other source of income for these years was social assistance. The only evidence that she provided to explain her lack of income for these years, apart from her driver’s licence suspension, was that she could not find work. She stated that she tried to return to school to obtain her grade 12 certificate, and did volunteer work in an effort to upgrade her skills, but that she could not secure a job. Again, her evidence in support of her inability to find work during this time frame was unconvincing. She did not adduce any documentary evidence or particulars about her job search efforts, her educational upgrading, or her volunteer work. The history of her employment leading up to this period indicates that she had been able to secure employment in book-keeping roles and in the hospitality industry. There was no evidence that she was suffering from any physical, emotional or mental challenges that undermined her ability to earn income. In short, she did not satisfy the onus of proving that income should not continue to be imputed to her in the amount of $20,800.00 for these years.

2012

[48] The Respondent filed a Notice of Assessment for 2012 indicating that she earned income of $5,873 that year. She testified that she moved from Cambridge to Hamilton in June 2012, and that she signed up with two temporary employment agencies in Burlington, namely Blitz and Canwork. The income reported in her Notice of Assessment was from a full-time job that she obtained through Blitz, picking mushrooms. She stated that she held this position for approximately 3 or 4 months, but that she lost this job because she was too slow on the job. She alleged that she did not obtain any further jobs through the employment agencies in 2012.

[49] The Respondent’s evidence regarding her income earning potential in 2012 was again not credible. She did not provide any explanation for her failure to work from January until June 2012. She did not provide any documentation from Blitz and Canwork indicating whether any jobs had been offered to her apart from the mushroom picking job. The evidence regarding the loss of her job at the mushroom farm suggests that she did not apply herself rigorously in that position. There is no documentary evidence of efforts she made to secure income after losing that job. In short, I find that there is no basis for concluding that she could not have earned an income of at least $20,800.00 in 2012.

2013

[50] The Respondent did not adduce any documentary evidence in support of her 2013 income. In her Change Information Form sworn September 14, 2015, she was required at paragraph 27 to disclose her 2013 income. She failed to do so, and noted her 2007 income instead. At trial, she testified that she worked for approximately 7 months in 2013 as a packer at the Mondelez Candy Factory in Hamilton, earning $10.25 per hour. She stated that she worked 32 hours one week and 40 hours the next week. Her annual income at this job would have therefore been approximately $19,188.00, without overtime. She would have earned approximately $11,193.00 over the 7 month period. The Respondent alleged that she injured her back on the job while doing this work, and applied for Workers Safety Insurance Board (“WSIB”) benefits. She indicated that she received a WSIB payout of approximately $2,100.00. According to the Respondent, she eventually obtained temporary work again as a machine operator at ILR Industries in November 2013. She worked 40 hours a week at the minimum wage rate of $10.25 per hour. Based on this evidence, I find that she earned approximately $3,280.00 from her employment with ILR Industries Inc. in 2013. Therefore, I estimate that her total 2013 income, taking into account the gross-up required for WSIB benefits, was at least $17,159.00. However, she has not satisfied me that she could not have earned at least $20,800.00. In particular, she did not adduce any documentary evidence confirming that she sustained a work related injury, how long the injury lasted, the efforts she made to address her injury and efforts she made to seek employment prior to securing the position at ILR Industries.

2014

[51] The Respondent did not file any documentary proof of her 2014 income. Again, in her Change Information Form sworn September 14, 2015, she was required to disclose her 2014 income and failed to do so. Instead, she noted her 2008 income. At the hearing, she testified that she continued to work for ILR Industries on a full-time temporary basis until June 2014, earning $10.25 per hour, and that she obtained full-time status at that company in June. At that point, her income increased to $11.75 per hour. She stated that she worked some overtime, but that this did not occur very often. Based on this evidence, I estimate that her total 2014 income was approximately $21,360.00.

2015

[52] Again, the Respondent failed to produce her Income Tax Return, Notice of Assessment and Notice of Reassessment for 2015. She also failed to adduce documentary evidence of her total 2015 income. She testified that she continued to work for ILR on a full-time, permanent basis throughout the year. She earned $11.75 per hour until February or March 2015, at which time she was promoted to the position of Lead Hand and received a raise to $13.25 per hour. She filed one pay slip from ILR Industries for the pay period from August 30, 2015 until September 4, 2015, which showed that her year to date income as of September 4, 2015, inclusive of overtime, was $20,203.20. Based on this evidence, I find that her total 2015 income was at least $30,300.00.

2016

[53] The Respondent did not provide any documentary evidence respecting her year to date 2016 income. She testified at trial that she continued to work at ILR Industries as a Lead Hand, earning $13.25 per hour, until March 2016. She stated that the Lead Hand position involved numerous responsibilities, including quality control, machine maintenance and employee management. She found the job too demanding, and eventually began to take time off work because she felt stressed. In March 2016, she reached a mutual agreement with ILR Industries that her employment would be terminated. According to the Respondent, she then secured a full time position as a machine operator at Plastics Plus, earning minimum wage of $11.25 per hour. Based on this evidence, I estimate that her 2016 income will be at least $22,240.00. However, I find based on the Respondent’s evidence that she was capable of earning an income of at least $13.25 per hour, which would translate into an annual income of $27,560.00, not including overtime. The Respondent did not adduce any credible evidence that she did not have the capacity to continue with the Lead Hand position at ILR Industries Inc. Her explanation that she left this full-time permanent job simply because it was too stressful is not compelling. She did not adduce any medical evidence to suggest that she suffered anxiety or any other medical fall-out from the job. The Respondent has an obligation to satisfy her child support arrears to the best of her ability. This means that she must continue to make every reasonable effort to maximize her income. I find that she has not done so, and I conclude that it is reasonable to continue to impute an income of at least $20,800.00 to her for 2016.

[54] Based on the foregoing analysis of the Respondent’s income, I find that she has not met the threshold test for variation by showing an inability to earn income of at least $20,800.00 since August 2001.

ISSUE #3: HAS THE RESPONDENT ESTABLISHED A MATERIAL CHANGE IN CIRCUMSTANCES BASED ON THE CHILDREN’S LOSS OF ENTITLEMENT TO SUPPORT?

A. Overview

[55] In both original applications for support and variation proceedings, the court must as a preliminary matter address the child’s entitlement to support. Termination of a child’s entitlement is often the change in circumstances which moving parties rely upon in bringing a Motion to Change. As I have stated, this is one of the grounds for the Respondent’s claim in this proceeding. For the reasons that follow, I conclude that the Respondent has met the threshold test for variation by establishing that all three children have lost their entitlement to support since 2001.

B. Relevant Legal Principles Relating to Entitlement to Support Under the [Family Law Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html)

[56] Section 33 of the Family Law Act, which deals with original child support applications, and section 37 respecting variation proceedings both stipulate that the obligation to pay support relates to a child who is a “dependant” within the meaning of the Act. Section 37(1) of the Act provides that an application to vary an order for child support may be made by, inter alia, a parent of a “dependant” named in the order to be varied. Entitlement to child support is therefore contingent on the child being a dependant within the meaning of the Act. The term “dependant” is defined in section 29 of the Act as a person to whom another has an obligation to provide support under Part III of the Act. Section 31 of the Act establishes the obligation of a parent to support a child, as follows:

31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. R.S.O. 1990, c. F.3, s. 31 (1); 1997, c. 20, s. 2.

Idem

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control. R.S.O. 1990, c. F.3, s. 31 (2).

[57] Based on these provisions, a parent seeking child support under the Family Law Act must as a preliminary issue establish that the child is unmarried and is either:

1. Under the age of sixteen years;

2. Sixteen or seventeen years of age and has not withdrawn from parental control; or

3. Eighteen years of age or older, is enrolled in a full time program of education and has not withdrawn from parental control.

[58] Since all of the children in this case are now over the age of 18 years, it is necessary to consider the law respecting entitlement to support for children who have acquired adult status. The purpose of the obligation under the Family Law Act to provide support for children over the age of majority is to ensure ongoing assistance to children who are pursuing an educational program and remain dependent on their parents while they complete their education (McNulty v. McNulty, 2005 CanLII 44836 (Ont. S.C.J.)). The wording of section 31(1) of the Act should be interpreted broadly and for the benefit of children in such a manner as to further this purpose and to ensure that children enrolled in an educational program have “easy access to the fruits of this section” (Copeland v. Copeland, [1992] O.J. No. 2677 (O.C.J.); Wilson v. Wilson, 2002 CanLII 2824, 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 CarswellOnt 3838 (S.C.J.); McNulty; Aubert v. Cipriani, 2015 ONSC 6103 (S.C.J.)).

[59] The cases decided under both the Divorce Act and the Family Law Act have held that the onus is on the party seeking child support to demonstrate the child’s ongoing eligibility for support (Rebenchuk v. Rebenchuk, 2007 MBCA 22, 2007 CarswellMan 59 (C.A.); Olson v. Olson, 2003 ABCA 56 (C.A.); MacLennan v. MacLennan, 2003 NSCA 9 (C.A.); Whitton v. Whitton (1989), 1989 CanLII 8868 (ON CA), 21 R.F.L. (3d) 261 (Ont. C.A.); MacLean v. Taylor, 2014 CarswellOnt 12302 (O.C.J.); Vohra v. Vohra, 2009 ONCJ 135 (O.C.J.); Aubert). Where a claim for support under the Family Law Act relates to an adult child, the party seeking support must provide tangible evidence that the child remains under parental charge, and that the child is enrolled in a full-time program of education. They also have the onus of satisfying the court that the child’s level of participation in the educational program is meaningful enough to meet the requirements of section 31(1) of the Act (Vohra). In order to remain eligible for support, the child’s participation in the program must be meaningful from both a quantitative and qualitative standpoint, and must be “consistent with the program’s purposes and objectives” (Figueiredo v. Figueiredo (1991), 1991 CanLII 4204 (ON SC), 33 R.F.L. (3d) 72 (Ont. Gen. Div.); Giess v. Upper, 1996 CanLII 8102 (ON SC), [1996] O.J. No. 5600 (Gen. Div.); Vohra; Aubert). The policy of the applicable educational institution as to what constitutes enrolment in a full-time program is not determinative of whether the child’s involvement in the program meets the requirements of section 31(1) of the Act (Cava v. Cava, 2005 CanLII 19815, 139 A.C.W.S. (3d) 904, [2005] O.J. No. 2316, [2005] O.T.C. 430, 2005 CarswellOnt 2287 (S.C.J.); Aubert).

[60] From a quantitative standpoint, a child need not have stellar school attendance in order to meet the test for enrolment, but there must be a reasonable degree of attendance taking into consideration the child’s particular needs and challenges. From a qualitative perspective, the child must demonstrate a reasonable degree of involvement, engagement and success in the program having regard for their overall level of functioning. The determination of whether a child’s participation in an educational program is sufficiently meaningful to secure ongoing entitlement to support must be undertaken with a focus on the particular circumstances of the child. A child may remain entitled to support on the basis of enrolment in an educational program even if their participation and achievement levels are problematic, provided that the effort which the child is putting forth is within their capability given their particular circumstances (Copeland; Vohra; Sullivan v. Sullivan (1999), 126 O.A.C. 292, 50 R.F.L. (4th) 326, [1999] O.J. No. 3973, 1999 CarswellOnt 3340 (Div. Ct.); Styles v. Styles, 2011 CarswellOnt 1134 (S.C.J.); Vivian v. Courtney, 2012 CarswellOnt 16444 (S.C.J.); Gillesse v. Earl, 2011 CarswellOnt 826 (S.C.J.); Aubert).

[61] A finding that a child over the age of majority is enrolled in a full-time program of education does not end the entitlement analysis. Eligibility for support also requires a finding that the child has not withdrawn from parental control. A child will be found to have remained under parental control if their overall circumstances are such that they remain financially and emotionally dependent on one or both of their parents (Martin v. Taylor, 2007 CarswellOnt 8863 (S.C.J.); Oates v. Oates, 2004 CarswellOnt 2878 (S.C.J); Aubert). The analysis of this issue must be undertaken from a broad and objective standpoint. The judge must scratch beneath the surface of outward appearances to determine whether the child is truly dependant on a parent, or whether their overall circumstances are such that they are independent or reasonably capable of being so (Aubert).

C. Analysis

[62] I heard evidence from the Respondent and her mother, Charlotte Pomerleau, regarding the children’s general circumstances since 2001. Based on that evidence, I am satisfied that all three children have lost their entitlement to support. Dealing first with Brandon, I find based on the evidence of Ms. Pomerleau that he began to live during the school year with his paternal grandmother, Jean Morden, in September 2006, when he was 14 years old. This move was precipitated by his desire to live in the Delta High School territorial zone so that he could play football for that school. Ms. Pomerleau was not certain if the Applicant continued to support Brandon financially or how often Brandon was in his father’s care. I conclude based on this evidence that Brandon simply assumed the paternal grandmother’s address for school purposes. There was no evidence indicating that the Applicant abdicated his caregiving or financial obligations towards Brandon. It was Ms. Pomerleau’s recollection that Brandon continued to live primarily with Jean Morden until grade 10 or 11, when he went to live with his girlfriend and her parents. Based on this evidence, I find that he was living with the paternal grandmother until the end of grade 11, which was in June 2009. He was 17 years old at that time. He commenced grade 12 in September 2009 and completed secondary school in June 2010. Although he remained enrolled in a full-time program of education until that time, I find that he had withdrawn from parental control as of the end of June, 2009. Accordingly, I conclude that his entitlement to child support ended on June 30, 2009.

[63] With respect to Adam, I find that he did not continue his secondary school studies past grade 10, which he completed in June 2010. He began to live with his girlfriend and her mother at that time. He was 16 years of age. Ms. Pomerleau testified that Adam attempted to re-enroll in high school several times after grade 10, but that he never completed his high school studies. The onus was on the Applicant to prove ongoing eligibility for child support. He did not adduce any evidence regarding Adam’s educational programming after grade 10. Accordingly, I conclude that Adam’s eligibility for child support ended as of June 30, 2010, since the evidence before me indicates that he was no longer enrolled in a full time program of education as of that time, and he had withdrawn from parental control.

[64] Finally, dealing with Ryan, I find based on Ms. Pomerleau’s evidence that he continued to reside with the Applicant until June 2015, when he graduated from grade 12. After completing grade 12, he obtained employment with the army Reserves. He eventually enlisted permanently with the army. Based on the evidence before me, I find that he did not continue with any further studies after grade 12. I conclude that his eligibility for support ended effective June 30, 2015, as he ceased to be enrolled in a full time program of education as of that time and was over the age of majority.

ISSUE #4: SHOULD THE COURT EXERCISE ITS DISCRETION TO RETROACTIVELY REDUCE SUPPORT OR REDUCE OR RESCIND ARREARS OF SUPPORT?

A. Overview

[65] Having met the threshold test for variation of the child support order, the Respondent has the onus of satisfying the court that her child support arrears should be adjusted through a retroactive reduction of support or an order reducing or rescinding arrears. Retroactive adjustments are clearly required to take into account the dates upon which each child’s entitlement to support terminated. Specifically, as of July 1, 2009, the Table amount should be retroactively adjusted so that it is based on 2 children, since Brandon’s entitlement ended on June 30, 2009. Similarly, the Table amount payable should be adjusted again effective July 1, 2010 so that it is based on one child, taking into consideration Adam’s loss of entitlement to support as of June 30, 2010. Finally, the Respondent is entitled to an adjustment of arrears to reflect that her child support obligations under the order terminated altogether effective June 30, 2015, given Ryan’s loss of entitlement as of that date. Having regard for my findings set out above the Respondent’s income, these adjustments should be based on the Respondent having an ongoing income of at least $20,800.00. The remaining issue is whether the court should permit any further adjustments to the Respondent’s arrears. For the reasons that follow, I decline to order any further adjustments.

B. Legal Principles Relating to Claims for Retroactive Reduction of Child Support, and Reduction or Rescission of Arrears

[66] Section 37(2) of the Family Law Act gives the court a wide discretion as to how to deal with claims by support payors for relief from the terms of an existing order in relation to the period pre-dating the commencement of the current proceeding. Specifically, the court has the following powers:

1. It can retroactively discharge (terminate) the existing order or one or more terms of the order as of a specified date, and order that arrears be re-calculated accordingly.

2. It can retroactively vary one or more terms of the order, including retroactively reducing the amount of child support payable for all or part of the period from the date of the existing order up to the commencement of the current proceeding, and reduce the arrears payable accordingly.

3. It can suspend enforcement of all or part of the order on a retroactive or prospective basis for a specified period of time or until certain conditions are met. A retroactive suspension essentially amounts to a temporary cessation of enforcement of arrears that have accumulated in relation to one or more terms of the order.

4. It can decline to vary the order on a retroactive basis, but nonetheless exercise its discretion to either reduce the arrears that have accumulated pursuant to the order or rescind them entirely.

[67] The Ontario Court of Appeal has held that there is no fixed formula for determining how the court should exercise its discretion in cases where a payor seeks retroactive relief from a child support order (Filipich v. Filipich, 1996 CanLII 1294 (ON CA), 1996 CarswellOnt 3263 (C.A.)). However, as the Ontario Court of Appeal held in Gray v. Rizzi, general guidance can be found from the basic principles that the Supreme Court of Canada articulated respecting child support 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] S.C.J. No. 37 (S.C.C.) (hereinafter referred to as “D.B.S”). That case involved a number of claims by child support recipients for retroactive support, but the general principles are nonetheless relevant to claims for retroactive relief by payors. In D.B.S., the court emphasized that child support is the right of the child. It arises upon the child’s birth, survives the breakdown of the parents’ relationship and exists independent of any statute or court order. Given that support is the child’s right, the child should not be left to suffer if one or both parents fail to monitor child support payments vigilantly. The court also held that child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together. It emphasized that ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it. To this end, the court sent a very clear message that any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated. With respect specifically to claims for retroactive relief, the court stressed the need to carefully consider the particular provisions of the statutory scheme under which the application is brought.

[68] In reviewing the case-law across the country respecting claims by child support payors for retroactive reduction of child support or reduction or rescission of arrears, a number of other general principles and guidelines percolate to the surface. The Ontario Court of Appeal summarized these principles and guidelines in Gray v. Rizzi. As a starting point, it concluded that a general distinction should be made between the following types of cases:

1. Situations where the payor had the ability to pay child support when it came due but nonetheless accumulated arrears, and they now seek relief in relation to those arrears based solely on current inability to pay; and

2. Situations where the payor experienced a genuine change in circumstances during the period when arrears accumulated which rendered them unable to keep up with their child support payments when they came due.

[69] In the first type of situation, the importance of predictability and certainty with respect to child support orders should be considered paramount, given the lack of excuse for non-payment of arrears at the time they accrued, and the necessity of ensuring that parents comply with their obligation to support their children. Accordingly, in such circumstances, the court should enforce the outstanding court order, unless there are compelling reasons not to do so. Generally, the court should only exercise its discretion to reduce or rescind arrears in this type of case where the payor has established on a balance of probabilities that they cannot pay and will not ever in the future be able to pay the arrears (Gray v. Rizzi, at para. 58; see also Haisman; Gray v. Gray, (1983), 1983 CanLII 4531 (ON SC), 32 R.F.L. (2d) 438 (Ont. H.C.); Corcios v. Burgos, 2011 ONSC 3326 (S.C.J.). Where the court concludes that the payor has some means to pay, or may be able to pay arrears in the future, it can consider limiting enforcement of the arrears to a specified monthly amount that is more manageable for the payor, or suspending enforcement of the arrears for a period of time to allow the payor time to obtain employment and increase their income. In these types of cases, evidence that the recipient agreed to non-payment of the support is generally irrelevant, since child support is the right of the child and cannot be bargained away by the recipient parent (Gray; Corcios).

[70] In the second type of situation referred to above, there is greater room for discretion to either retroactively reduce child support or reduce or rescind arrears, since there is a legitimate reason for the payor’s failure to keep up with child support payments. However, the fact that the payor experienced a genuine change in circumstances which affected their ability to pay does not in and of itself automatically entitle the payor to a retroactive downward adjustment of support, or a reduction or rescission of arrears. The court has a broad discretion to determine whether or not to grant relief, and to craft a tailor-made remedy in the event that it exercises its discretion in favour of the payor (Gray; Corcios). There is no fixed formula for how the court should exercise its discretion in this situation. However, a review of the case-law reveals that the following factors and considerations may provide useful guidance to the court in determining whether to grant retroactive relief, the type of relief that may be appropriate, and the specifics of how the chosen remedy should be crafted:

1. The nature of the obligation to support, whether contractual, statutory or judicial. (Gray v. Rizzi; Gray v. Gray; Filipich; DiFrancesco v. Couto, 2001 CanLII 8613 (ON CA), 2001 CarswellOnt 3858 (C.A.). Corcios; Szitas v. Szitas, 2012 ONSC 1548 (S.C.J.)).

2. Whether there is a reasonable excuse for the child support payor’s delay in pursuing relief. (D.B.S.; Gray v. Rizzi; Gray v. Gray; Filipich; DiFrancesco; Corcios). While unreasonable delay may not negate all potential relief, it is a factor to consider in determining whether the court should exercise its discretion to grant relief and if so, how the remedy should be crafted (M.(D.) v. A.(S.), 2008 CarswellNS 367 (N.S.F.C.)). Even in cases where the child support payor gives the recipient notice of a change in circumstances and a request for relief, delay in actually initiating a court proceeding may be a relevant factor in determining whether to grant relief to the payor. This could arise, for instance, if the payor does not provide the recipient with disclosure which the recipient requires to independently assess the payor’s claim that child support should be changed.

3. The motivating factors behind the payor’s decision to pursue relief may also be relevant. Where the payor has only initiated Motion to Change proceedings to seek relief in relation to significant arrears due to default proceedings by the FRO and under threat of coercive enforcement measures, this may influence the court to either deny relief altogether or to carefully circumscribe the relief granted to the payor. To allow retroactive relief as a matter of course in such circumstances would provide an incentive to payor parents to simply declare an inability to pay, ignore child support orders, and abandon their children financially unless the FRO comes knocking on their door (Szitas).

4. The ongoing financial capacity of the child support payor, and in particular, their ability to make payments towards the outstanding arrears (Gray v. Rizzi; Gray v. Gray; Filipich; DiFrancesco; Malleye v. Brereton, 2007 ONCJ 216, 2007 CarswellOnt3037 (O.C.J.); Vaughan v. Vaughan, 2007 CarswellOnt 184 (S.C.J.); Corcios; Szitas).

5. The ongoing need of the child support recipient and the child. (D.B.S.; Gray v. Rizzi; Gray v. Gray; Corcios).

6. The conduct of the child support payor in relation to child support, including the following considerations:

i. Whether they have made any voluntary payments on account of arrears;

ii. Whether they have cooperated with enforcement agencies in addressing the issue of child support;

iii. Whether they have kept the recipient fully apprised of the changes in their circumstances over time as these changes occurred;

iv. Whether they have complied with obligations and requests for financial disclosure to the child support recipient in an effort to address the child support issue;

v. Any evidence respecting their willingness to support the child or alternatively to avoid their child support obligation. Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission of or reduction of arrears. (D.B.S.; Gray v. Rizzi; DiFrancesco; Corcios). Further, failure to disclose a material change in circumstance to the recipient for an extended period of time may also be relevant (M.(D.) v. A.(S.)).

7. Delay on the part of the child support recipient, even a long delay, in enforcing the child support obligation, is not relevant and does not in and of itself constitute a waiver of the right to claim arrears (Haisman; Brown).

8. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. (D.B.S.; Gray v. Rizzi; Gray v. Gray; Filipich; DiFrancesco; Corcios). For example, if a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor due to overpayment, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order (M.(D.) v. A. (S.)). Where the court decides to make an order that involves payment of substantial arrears, it can craft an order that will alleviate any potential hardship to the payor. For instance, it can suspend enforcement of arrears for a period of time or establish a schedule for the payment of arrears that is realistic having regard for the payor’s financial situation. (Gray v. Rizzi; Haisman; M.(D.) v. A. (S.); Corcios).

[71] If the court determines that a retroactive reduction of child support is appropriate, it must determine the date from which any change in child support should take effect, and the extent of the reduction. In D.B.S., the Supreme Court of Canada established that generally, a retroactive child support order should commence as of the date of effective notice that a request is being made for an adjustment to child support. It further held that in most cases, it will be inappropriate to make a support award retroactive to a date more than three years before formal notice was given of the requested change. These principles apply equally to claims for retroactive downward variation of child support (Gray v. Rizzi). The effective date of notice is “any indication by the payor parent that child support requires a review and adjustment. Effective notice does not require the payor parent to take legal action; what is required is that the topic be broached” (M.(D.) v. A. (S.)). However, in the case of claims by payor parents to retroactively reduce child support or reduce or rescind arrears, effective notice and formal notice require that the payor provide the recipient with reasonable proof to support the claim for a change to the order, so that the recipient can independently assess the situation in a meaningful way and respond appropriately. A child support recipient is entitled to expect that the existing order will be complied with and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor’s circumstances has occurred. The absence of a disclosure requirement on the payor in determining the date of effective or formal notice in these cases would unfairly impose a burden on the support recipient to attempt to confirm the alleged change in circumstances through their own means in order to decide how to respond to the payor’s claim for an adjustment (Gray v. Rizzi; Corcios).

[72] Where a payor seeks a retroactive reduction of child support, or to reduce or rescind arrears, they have an ongoing obligation to engage in dialogue with the recipient, advise the recipient of changes in their circumstances that impact their ability to pay support and disclose pertinent information so that the recipient can continue to independently assess the situation and react appropriately. Accordingly, although the effective date of notice may determine the date from which relief for the payor may begin, a payor’s failure to engage in ongoing dialogue and to provide updated disclosure will likely impact on the remedy which the court crafts (Gray v. Rizzi; Corcios).

[73] With respect to the quantum of any retroactive child support order, the Guidelines apply, provided that the date of retroactivity is not prior to the date when the Guidelines came into force, and subject to the principles set out in the statutory scheme under which the Court is operating (D.B.S.; M. (D.) v. A.(S.); Gray v. Rizzi; Corcios).

C. Analysis

[74] As noted above, I decline to grant the Respondent any further relief from the arrears that she accumulated pursuant to the August 7, 2001 order. This decision is based in part on my findings respecting her income since 2001 as set out above. I am not satisfied that the Respondent was unable for legitimate reasons to meet her child support obligations as they became due. Rather, as discussed above, I find that the Respondent was able to earn at least $20,800.00 per year. She did not make diligent efforts to maximize her income so that she could support her children. She admitted that for many years, she chose to remain in a relationship with a man for whom life was “a party,” and to allow this man to support her financially. When she did work, I find that she did not apply herself diligently so as to earn at least the $20,800.00 which the support order was based on. Given that the Respondent was able to earn this income over the years, and that she is currently gainfully employed, I have decided that it is more appropriate to make an order directing that outstanding arrears be enforced at a specified monthly amount than to reduce or rescind the arrears.

[75] The Respondent’s request for relief with respect to her child support arrears was based in part on her allegation that the Applicant father prevented her from seeing the children for many years. I do not accept her concerns in this regard as a basis upon which to reduce or rescind the child support arrears that she owes for several reasons. First, she did not give notice of this argument in the Motion to Change that she served on the Applicant. Second, even if she had pled this issue, problems enforcing access do not support a claim for a reduction of child support or reduction of arrears. Child support is the right of the child, and a child support payor cannot turn access enforcement challenges into a tool for denying the child their basic right to financial support (Kunz v. Cameron, 2011 CarswellOnt 6316 (S.C.J.)). Problems with respect to access should be addressed by way of court proceedings aimed at dealing head-on with that issue. There is no evidence that the Respondent initiated any legal proceedings in an attempt to resolve the alleged access enforcement problems. She stated that she tried to secure Legal Aid funding for legal counsel in 2003, but that she simply gave up trying to deal with the custody and access issues when she was denied a Legal Aid certificate. Finally, the Respondent’s evidence indicates that there may very well have been legitimate reasons for any attempts on the part of the Applicant to limit her access with the children. The Respondent acknowledged that she had a serious alcohol problem in 2001 that resulted in her being unable to care for the children. She indicated that she did not attempt to have the children returned to her care until 2003, and that she did not receive a copy of the orders that were made in 2001 until that time. This evidence suggests that she had minimal if any contact with the children from 2001 to 2003. Furthermore, the Respondent acknowledged that she was involved in a relationship with a man for many years who told her that she did not have to work, and who “made my life a party.”

[76] There are numerous other factors and considerations that have influenced my decision to decline further relief to the Respondent in this case. Even if the Respondent had been genuinely unable to earn income of $20,800.00 since 2001, I would have declined to allow any further reduction of her arrears having regard for the following:

1. The Respondent did not participate in the proceedings in which the August 7, 2001 order was made, and did not provide the income disclosure that she was required to produce in those proceedings.

2. Notwithstanding the Respondent’s non-compliance with her income disclosure obligations, Van Duzer, J. gave her a chance to seek a review of the quantum of support within 30 days of being served with the August 7, 2001 order, provided that she disclosed her income information. The Respondent testified that she received a copy of the order in 2003, when she asked the Applicant to return the children to her care. She did not file proof of her income within 30 days of receiving the order and did not request a review of the quantum of child support at that time.

3. From 2001 until 2007, the Respondent simply allowed arrears to accumulate and did not take any steps to change the order or negotiate a resolution of her arrears problem. She continued to operate in this manner in relation to her arrears even after the FRO suspended her driver’s licence in 2007 in an effort to secure her compliance.

4. It was only when the FRO finally stepped up its enforcement efforts by commencing default proceedings that the Respondent began to take the order seriously and commenced this variation proceeding.

5. The Respondent did not adduce any evidence to explain her delay in addressing the significant arrears that she accumulated pursuant to the order.

6. In addition, there is no evidence of any efforts on the part of the Respondent after she became aware of the order in 2003 to contact either the FRO or the Applicant to work out a payment plan or other resolution with respect to her arrears situation. The Respondent admitted that the FRO was only able to enforce minimal amounts for support over the years through garnishment of income tax and GST/HST refunds. There is no evidence that the Respondent made any voluntary payments of support.

7. The Respondent continued to be non-compliant with her financial disclosure obligations even in the context of these proceedings. I have already described in detail the disclosure orders that I made and the Respondent’s failure to comply with same despite the numerous chances that I gave her to comply.

[77] By way of summary, the Respondent has since 2001 demonstrated a patent disregard for her obligation to support her children and a lack of respect for the Rules and orders of this court. While I appreciate that she is only earning a modest income at this time, any concerns regarding her ability to pay can be addressed by way of an order fixing the amount of arrears that she will be required to pay each month. To grant any additional relief on the facts of this case would send the wrong message to support payors that they can cavalierly ignore their support obligations with the expectation that they can obtain relief from this court down the road.

ISSUE #5: CALCULATION OF CHILD SUPPORT ADJUSTMENTS

A. Relevant Legal Principles

[78] Having determined that the only appropriate changes to the August 7, 2001 order relate to the children’s loss of entitlement to support, it is necessary to calculate the appropriate step-down amounts of support when Brandon and Adam’s entitlement ended. Sections 37(2.2) to 37(2.6) of the Family Law Act and the provisions of the Guidelines establish the framework for the calculation of child support in a variation proceeding. Section 37(2.2) of the Family Law Act stipulates that a court making a variation order under section 37(2.1) must do so in accordance with the Guidelines. There is an exception from this rule set out in section 37(2.3), which allows for a deviation from the Guidelines where special provisions in an order or agreement are in place which directly or indirectly benefit the child, or special provisions have otherwise been made for the benefit of the child and the application of the Guidelines would result in an amount of child support that is inequitable given those special provisions. The second exception to the application of the Guidelines set out in the Family Law Act is section 37(2.5), relating to consent orders, where the court is satisfied that reasonable arrangements have been made for the support of the child.

[79] Turning to the relevant provisions of the Guidelines, section 2(4) (b) reiterates the general principle that the Guidelines apply, with such modifications as the circumstances require, to orders varying a child support order. The starting point for the determination of the amount of child support under the Guidelines is section 3, which sets out the following presumptive rules respecting the amount of child support, depending on whether the child in question is under or over the age of majority:

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Child the age of majority or over

(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,

(a) the amount determined by applying these guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child.

[80] Section 3(1) refers to section 7, which deals with special and extraordinary expenses as follows:

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

B. Analysis

[81] Based on Brandon’s loss of entitlement to support effective June 30, 2009, I conclude that the Respondent’s child support obligation should be reduced on a retroactive basis effective July 1, 2009 to $319.00 per month, which was the appropriate Table amount at that time for two children based on an income of $20,800.00. In addition, given Adam’s loss of entitlement to support effective June 30, 2010, there should be a further retroactive reduction in the Respondent’s child’s support obligation effective July 1, 2010 to $179.00 per month, which was the Table amount at that time for one child based on an income of $20,800. An order should also issue terminating the Respondent’s obligation to pay child support for the child Ryan effective June 30, 2015.

[82] With respect to the balance of child support arrears that the Respondent will owe to the Applicant after the adjustments referred to above are made, I have taken into consideration the Respondent’s limited income and her evidence that she is struggling to meet her own needs at this time. However, given her history of serious non-compliance with the support order, she should be required to make a meaningful contribution. The current Table amount for three children based on an income of $20,800.00 is $434.00. In my view, this is a fair and reasonable monthly amount for the Respondent to pay on account of child support arrears.

PART IV: TERMS OF ORDER TO ISSUE

[83] On the basis of the foregoing, a final order shall issue as follows:

1. The Applicant is noted in default.

2. The order of the Honourable Mr. Justice Van Duzer dated August 7, 2001 is changed as follows:

i. The Respondent’s obligation to pay the Applicant child support for the child Brandon Morden, born February 14, 1992 is terminated effective June 30, 2009.

ii. Commencing July 1, 2009 and continuing on the first day of each month that follows until June 30, 2010, the Respondent shall pay the Applicant child support for the children Adam Morden, born January 29, 1994, and Ryan Morden, born March 25, 1996 in the amount of $319.00 per month, based on an imputed annual income of $20,800.00.

iii. The Respondent’s obligation to pay the Applicant child support for the child for the child Adam Morden is terminated effective June 30, 2010.

iv. Commencing July 1, 2010 and continuing on the first day of each month that follows until June 30, 2015, the Respondent shall pay the Applicant child support for the child Ryan Morden in the amount of $179.00 per month, based on an imputed annual income of $20,800.00.

v. The Respondent’s obligation to pay the Applicant child support for the child Ryan Morden is terminated effective June 30, 2015.

3. Arrears of child support owed by the Respondent to the Applicant shall be recalculated based on the terms of this order. The Respondent shall pay these arrears at the rate of $434.00 per month commencing November 1, 2016 and continuing on the first day of each month that follows until the arrears are paid in full.

4. Unless the support order herein is withdrawn from the Office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

5. This Order bears post-judgment interest at the rate of 3% per annum, effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

6. A Support Deduction Order shall issue.

7. A copy of this order and these Reasons for Judgment shall be served on the Applicant substitutionally by court staff sending them to the Family Responsibility Office, and the Family Responsibility Office mailing them to the Applicant to his last known address in the Director’s records for the Applicant. The Family Responsibility Office shall prepare an affidavit of service and return it to the Trial Coordinator’s Office by regular mail for filing in the Continuing Record.

The Honourable Madam Justice Deborah L. Chappel

Released: November 4, 2016