CITATION: Collins v. Colling, 2017 ONSC 2232

COURT FILE NO.: F-1132/04

DATE: 2017/04/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Trina Collins

Applicant

– and –

Ryan Colling

Respondent

Self-Represented

Not appearing

HEARD: October 12, 2016

The Honourable Madam Justice Deborah L. Chappel

REASONS FOR JUDGMENT

PART I: INTRODUCTION

PART I: INTRODUCTION

1The Applicant Trina Collins (“the Applicant”) and the Respondent Ryan Colling (“the Respondent”) are the parents of Mason Christopher Ryan Collins, born February 2, 2004 (“Mason”). They separated in 2003. On June 14, 2004, they executed a Separation Agreement (“the Agreement”) which addressed the issue of monthly child support for Mason. The Applicant filed the Agreement with this court on June 17, 2004. The parties subsequently executed an informal agreement on July 29, 2005 addressing the Respondent’s access to Mason.

2The Applicant commenced this application on December 17, 2015. Service of the application and supporting materials was effected on the Respondent on June 6, 2016. The Respondent did not serve and file an Answer and Claim, and did not appear at the hearing. The trial therefore proceeded on an uncontested basis. I heard oral evidence from the Applicant in support of her claims.

3The issues to be determined in this case are as follows:

1. Should the Applicant be granted sole custody of Mason?

2. If the Applicant is granted sole custody, should the order also include specific terms relating to travel with Mason and to address issues respecting documentation pertaining to him?

3. What access terms are in Mason’s best interests?

4. Should an order be granted requiring the Respondent to pay the Applicant an increased Table amount of child support for Mason pursuant to the Child Support Guidelines (Ontario), O. Reg. 391/97, as amended (the “Guidelines”) on a retroactive and ongoing basis?

5. Should an order issue requiring the Respondent to contribute to special and extraordinary expenses relating to Mason pursuant to section 7 of the Guidelines on a retroactive and ongoing basis?

6. With respect to questions 4 and 5:

a) Are the child support issues governed by the law relating to originating child support proceedings, or do the legal principles respecting variation proceedings apply?

b) If the legal principles respecting variation of child support are applicable, has the Applicant established that there has been a material change in circumstances justifying a variation of the child support terms of the Agreement?

c) Assuming that the threshold test of a material change in circumstances has been met, is a retroactive child support award appropriate in the circumstances of this case?

d) If a retroactive child support order is appropriate, what is the proper commencement date for a retroactive award?

e) What is the appropriate Table amount payable by the Respondent on a retroactive and ongoing basis?

f) What expenses relating to Mason qualify as section 7 expenses, and what if any contributions should the Respondent be required to make to those expenses on a retroactive and ongoing basis?

4For the reasons that follow, I conclude that it is in Mason’s best interests that the Applicant be granted sole custody, and that the Respondent’s access be in the discretion of the Applicant. I have also determined that it is in Mason’s best interests that the Applicant be permitted to travel with him anywhere and manage all issues respecting Mason’s important documents without the Respondent’s consent. With respect to the child support issues, I have determined that the legal principles respecting variation proceedings apply, and that there have been several material changes in circumstances justifying a change to the child support terms of the Agreement. I have also concluded that retroactive relief is appropriate in this case, effective from January 2008. I have made an order requiring the Respondent to pay increases in the Table amount commencing January 1, 2008, and fixing arrears owed by the Respondent to the Applicant on account of section 7 expenses up to and including October 31, 2016 in the amount of $1,775.00. I have ordered the Respondent to pay the Applicant an additional fixed amount of $826.00 per month commencing May 1, 2017 on account of child care expenses and extracurricular physical fitness expenses, and to contribute towards any other section 7 expenses on an ongoing and proportionate-to-income basis commencing November 1, 2016.

PART II: BACKGROUND

PART II: BACKGROUND

5The Applicant and Respondent met in approximately 2001 and were in a relationship until sometime in 2003. They never cohabited. They separated during the Applicant’s pregnancy with Mason, who is the only child of their relationship. The Applicant has been Mason’s primary caregiver since his birth. The Applicant has two older children from other relationships, namely Ashlyn Draper born October 14, 1995 and Erika Danielle Collins, born November 29, 1999. Ashlyn is living independently, but Erika was living with the Applicant at the time of the hearing of this matter.

6This application is the first court proceeding involving this family. The Agreement dated June 14, 2004 is the only formal Separation Agreement between the parties. Pursuant to the Agreement, the Respondent was to pay the Applicant child support in the amount of $375.00 per month on the second day of each month in accordance with the Tables under the Guidelines. Although the Agreement did not set out the Respondent’s income upon which this amount of support was based, $375.00 was the Table amount based on an income of $43,500.00 at that time. The Applicant filed the Agreement with this court on June 17, 2004, pursuant to section 35 of the Family Law Act, R.S.O. 1990, c. F-3, as amended.

7I find that the Respondent has been regularly non-compliant with the child support terms of the Agreement since very soon after he signed it. He has frequently gone into arrears, and the Family Responsibility (the “FRO”) has pursued enforcement measures against him, including suspension of his driver’s licence, on several occasions. As I will discuss in further detail below, he has evaded attempts on the part of the Applicant to find him, to obtain updated income disclosure and to address child support issues, including requests to contribute to section 7 expenses relating to Mason, and has engaged in tactics to frustrate the FRO’s attempts to enforce his child support obligation.

8Although the parties did not address the issues of custody and access through court proceedings or a formal Separation Agreement, they executed an informal agreement on July 29, 2005 which set out terms respecting the Respondent’s access. The parties’ signatures on this agreement were not witnessed, and therefore the document does not meet the formal requirements of a domestic contract pursuant to section 55 of the Family Law Act. The intention of the parties at that time, as stipulated in this informal agreement, was that the Respondent’s access would begin with daytime visits on the weekend, alternating between Saturday and Sunday each week, from 9:00 a.m. until 4:00 p.m. until Mason was 3 years old. Access was supposed to then progress to alternate weekends from Friday at 4:00 p.m. until Saturday at 4:00 p.m., until Mason was 5 years old. The intention was that once Mason turned 5, the Respondent would have full alternate weekend access from Friday at 4:00 p.m. until Sunday at 7:00 p.m., as well as mid-week access on alternate Thursdays following weekend access from 4:00 p.m. until 7:00 p.m. Paragraph 3 of the agreement stipulated that the Respondent was to control his temper in front of Mason, and that supervised access would be implemented in the event that the Respondent exposed the child to “any environment were [sic] arguments are taking place.” The Respondent did not follow through with this access plan. As I will discuss in further detail below, he has had sporadic access with Mason since the child’s birth, has been unreliable with respect to visits, and has gone for very long periods of time without having any contact whatsoever with Mason. The Respondent’s last visit with Mason was sometime in 2014.

9As I have stated, the Applicant commenced this application on December 17, 2015. Her decision to commence court proceedings followed many unsuccessful attempts on her part to obtain updated income disclosure from the Respondent and to secure additional financial assistance from him to cover various section 7 expenses relating to Mason. When she commenced the application, she could not locate the Respondent to serve him, because the Respondent had refused to provide her with his address for many years. On May 27, 2016, the Applicant brought a motion for substitutional service of the court materials on the Respondent. On that date, Pazaratz, J. made an order for substitutional service by having the FRO send the court materials to the Respondent by ordinary mail to his last known address in the FRO’s records. The FRO mailed the court materials to the Respondent on June 1, 2016, and therefore service was effective on him as of June 6, 2016. The new first appearance date on the application that the FRO served on the Respondent was July 21, 2016. The Respondent did not appear on that date, and therefore the clerk endorsed that the matter could proceed on an uncontested basis.

10This matter initially came before me in chambers on August 3, 2016. I could not deal with it at that time, as I required significant additional evidence and clarification from the Applicant on many issues. The case was therefore scheduled for a hearing before me on October 12, 2016.

PART III: CUSTODY AND ACCESS ISSUES

I. THE APPLICANT’S POSITION

PART III: CUSTODY AND ACCESS ISSUES

11The Applicant seeks an order for sole custody of Mason in her favour. She submitted that she has been the child’s sole caregiver since his birth, and that the Respondent has had minimal contact with Mason. She also noted that the Respondent has not had any involvement in decision-making about Mason, and has not demonstrated an interest in learning about or addressing the child’s needs. As part of the sole custody order, the Applicant seeks orders permitting her to travel anywhere outside of Canada without the Respondent’s consent, and granting her the right to apply for, renew and/or replace Mason’s passport and any other important legal documents respecting the child without the Respondent’s consent.

12With respect to access to the Respondent, the Applicant indicated that she would like very much for the Respondent to have regular access with Mason, as this would benefit the child and provide her with some relief. She hoped that the Respondent would attend court so that she could address this issue with him. She wishes for access to remain open, and for it to essentially be in her discretion.

II. THE LAW

The Law

13The applicable legislation in this case in regard to custody and access issues is the Children’s Law Reform Act (R.S.O. 1990, c. C-12, as amended) (the “CLRA”). Section 20 of the CLRA stipulates that except as otherwise provided for in Part III of the Act, the father and mother of a child are equally entitled to custody of the child. Section 20(2) provides that the entitlement to “custody” encompasses the rights and responsibilities of a parent in respect of the person of the child, and requires a person who is entitled to custody to exercise those rights and responsibilities in the best interests of the child. The term “custody” refers broadly to parental decision-making and authority respecting a child (Young v. Young, 1993 CanLII 34 (SCC), [1993] S.C.J. No. 112 (S.C.C.)). The incidents associated with custody include the responsibilities of providing physical care for the child, overseeing all aspects of day-to-day life and long-term wellbeing, determining the child’s residence, disciplining the child, and making major decisions about the child’s education, religion, health care, general well-being and activities (Young, at para. 26; Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 25 O.R. (2d) 673 (C.A.); Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), 8 R.F.L. (2d) 236 (Ont. C.A.); Chou v. Chou, 2005 CanLII 11195 (ON SC), [2005] O.J. No. 1374 (S.C.J.); Harsant v. Portnoi, 1990 CanLII 6703 (ON SC), [1990] O.J. No. 1144, 74 O.R. (2d) 33 (H.C.J.); Scott v. Chenier, 2015 ONSC 7866 (S.C.J.); Izyuk v. Langley, 2015 ONSC 2409 (S.C.J.); Chomos v. Hamilton, 2015 ONSC 5208 (S.C.J.)). The power which a custody order confers on a party is not a “right” that is granted to the party for their own benefit. Rather, as the Supreme Court of Canada stated in Young, at para. 25, the power that flows from a custody order “is designed to enable that parent to discharge his or her responsibilities and obligations to the child. It is, in fact, the child’s right to a parent who will look after his or her best interests.” (see also Racine v. Woods, 1983 CanLII 27 (SCC), [1983] 2 S.C.R. 173 (S.C.C.), at para. 85; Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99 (S.C.C.) at p. 132).

14An award of sole custody to one parent grants decision-making rights to that parent, generally to the exclusion of the other parent to interfere in carrying out these rights and responsibilities (Kruger). The term “joint custody” is used to describe situations where both parents are given full decision-making authority and responsibility in all areas respecting the child. Section 20(3) of the Act provides that where more than one person is entitled to custody of a child, “any one of them may exercise the rights and accept the responsibilities of a parent on behalf of them in respect of the child.” The entitlement to “access” is defined in section 20(5) of the Act as including “the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.”

15Section 21 of the CLRA provides that a parent or any other person may apply for an order respecting custody of or access to a child, or determining any aspect of the incidents of custody of the child. Section 24(1) directs that the merits of an application dealing with these issues must be determined on the basis of the best interests of the child. The factors which the court is required to consider in carrying out the best interests analysis are set out in sections 24(2) to (4) as follows:

Best interests of child

24(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1).

16The list of factors set out in sections 24(2) to (4) is not an exhaustive outline of the relevant considerations in carrying out the analysis of the best interests of the child. The best interests determination is based on a multiplicity of factors, and must be tailored to the unique facts and dynamics of each case. As the Supreme Court of Canada stated in King v. Low, 1985 CanLII 59 (SCC), [1985] 1 S.C.R. 87 (S.C.C.), at para. 101, the ultimate aim of the courts in resolving custody and access disputes is “to choose the course which will best provide for the healthy growth, development and education of the child so that he will be equipped to face the problems of life as a mature adult.” The court is not required to specifically enumerate and analyze the criteria set out in section 24 of the Act, but rather must consider all of the factors that are relevant in the particular case that it is called upon to decide (Walsh v. Walsh, 1998 CanLII 7134 (ON CA), [1998] O.J. No. 2969, 39 R.F.L. (4th) 416 (C.A.)). The child’s best interests must be ascertained from the perspective of the child rather than the parents; parental preferences and rights do not play a role in the analysis except to the extent that they are necessary to ensure the best interests of the child (Gordon v. Goertz (1996), 19 R.F.L. (4th) 17 (S.C.C.); Young).

17The court may as part of a custody order impose such terms, conditions and restrictions as it considers appropriate and necessary to foster the best interests of the child (Reeves v. Reeves, 2010 CarswellNS 265 (C.A.)).

III. ANALYSIS

Analysis

18The evidence in this case clearly supports an order for sole custody of Mason in favour of the Applicant. I find that the Applicant has been Mason’s sole caregiver since his birth. The Respondent has not played a part in decision-making respecting the child, and his contact with Mason and general involvement in the child’s life have been minimal. The Respondent had occasional visits with Mason at the Applicant’s home when Mason was an infant, at his convenience. When Mason became a toddler, the Applicant made diligent efforts to establish a consistent access routine for the Respondent and Mason, but the Respondent did not commit to a regular plan for seeing the child. He would often not show up for scheduled visits, would attend late, or would return Mason to the Applicant’s care early. Moreover, he would simply disappear for extended periods of time, without maintaining contact with the Applicant and Mason. The Applicant attempted to implement regular weekend access to the Respondent when Mason was approximately 3 years old. However, this plan did not go well because the Respondent was completely unreliable in abiding by arrangements that the parties made. In addition, there were many occasions when he left Mason with his mother rather than spending time with him. The Respondent failed to show up for his first scheduled full weekend visit.

19I accept the Applicant’s evidence that the Respondent’s inconsistency regarding access was very emotionally upsetting to Mason. Following the last failed weekend visit, the Applicant asked the Respondent to leave her and Mason alone. The Respondent did not have contact with Mason again until the fall of 2013, when Mason was almost 10 years old. At that time, Mason expressed a desire to know his father. The Applicant therefore reached out to the Respondent again and suggested that access resume, with the goal of working towards full alternate weekend access. Visits between the Respondent and Mason occurred for approximately 4 or 5 weeks at that point, and the Respondent had some overnight visits. However, the visits did not go well, and access broke down completely once a full weekend was attempted. Mason did not enjoy the visits, and the Respondent expressed frustration with Mason’s behaviour. The Applicant suggested counselling for the Respondent and Mason to work on their relationship, but the Respondent declined to engage in counselling. Following the last visit, the Respondent told the Applicant that Mason could not return to his home until he learned some manners and etiquette. The Respondent has not seen Mason since he was ten years old. However, he occasionally sends him gifts and cards.

20The Respondent has also failed to participate in decision-making respecting Mason, and has demonstrated a lack of interest in learning about Mason’s needs and his progress. The Applicant has on many occasions advised him about medical procedures and surgeries for Mason, and he has not made inquiries or attended the appointments. The Applicant met with the Respondent when Mason was 7 or 8 years old to obtain his signature for Mason’s passport application. The Respondent had not seen Mason for an extended period of time at that point, but the Respondent did not inquire as to how he was doing. The Applicant called the Respondent during the summer of 2015 to advise him of serious concerns regarding Mason’s mental health, and the Respondent simply blamed the Applicant for the problems and did not participate in problem-solving around the issues.

21In reaching my decision respecting custody, I have considered Mason’s needs and the ability of the Applicant to meet those needs. Mason is a child with a multiplicity of special needs. He has been diagnosed with a rare genetic condition called Prader Willi Syndrome, which causes an insatiable appetite, a compulsion to eat to the point of becoming extremely ill, a high risk for obesity, mood instability issues, an inability to sustain muscle mass and significant behaviour challenges. He has also been diagnosed as suffering from Major Depressive Disorder, Obsessive Compulsive Disorder, Oppositional Defiant Disorder, Attention Deficit Disorder, Conduct Disorder, a Learning Disability and Upper Respiratory Reactive Airway Syndrome. His desire to eat uncontrollably places him at serious risk of sustaining a ruptured stomach, choking and other major medical emergencies. As a result of this difficulty, food must be carefully and diligently stored in cupboards, fridges and freezers that are locked, and Mason must be very closely supervised at all times. Mason also requires a strictly controlled diet, as he is at very high risk of becoming obese as a result of his condition. He requires regular fitness programming in order to alleviate this risk. In addition, Mason has severe behavioural challenges and is very aggressive at times. His emotional status is highly unstable and fragile, and he has demonstrated suicidal tendencies and engaged in suicidal conduct on a number of occasions, most recently during the summer of 2015. As a result of these challenges, he requires a highly competent and responsible caregiver and a strictly controlled environment in which any medications, sharp objects and other potentially dangerous items must be locked up.

22Mason is monitored by numerous medical and other professionals due to his special needs. He typically has between 7 and 15 appointments with various professionals each month. These include the following:

1. He attends appointments with Dr. Powles at St. Joseph’s Hospital for sleep issues, once a month.

2. He is monitored by the Psychiatry Clinic, including Dr. Boylan, at the Ron Joyce Children’s Centre, and attends appointments there at least 3 times per month.

3. He is followed by the Children’s Exercise, Nutrition and Dietician Clinic at McMaster Hospital, where he sees a dietician, activitist, nutritionist, psychologist and physician. The Applicant takes him for appointments at this clinic approximately three times per month.

4. He is seen by an endocrinologist at McMaster Hospital and attends appointments with this specialist regularly.

5. He has a pediatrician, Dr. MacKenzie, who he also sees regularly.

6. Mason is also involved with a psychologist, Dr. Lok, who he sees on a regular basis.

7. He is also involved with the family doctor and with a counsellor at that doctor’s office.

8. In addition, the Applicant takes the child to standard appointments such as eye care and dental care visits.

23The responsibilities associated with parenting Mason are enormous, to put it mildly. I find that the Applicant has done a truly remarkable job of meeting all of Mason’s basic and special needs. With respect to Mason’s emotional and mental health needs, I am satisfied that there is a close and loving bond between the Applicant and Mason, and that the Applicant has taken all necessary steps to ensure that Mason’s mental health needs are met. She has also addressed all of Mason’s basic physical, educational and developmental needs. The evidence indicates that she has made extraordinary personal sacrifices to ensure that Mason receives the treatment, support and supervision that he requires in order to be safe and maximize his potential. She worked two part-time jobs until July 2016 in order to meet all of Mason’s needs, and was able to finally secure full-time employment in July 2016. She is an ambulance dispatcher, which involves shift work, and she has often lost work time and overtime opportunities in order to attend to Mason’s needs and take him to appointments. She changed her employment in 2015, with a resulting wage loss, so that she could be closer to home and more available for Mason. She uses virtually all of her time off work to take Mason to his numerous appointments. She does not have extended family to assist her in caring for Mason and taking him to his meetings with various professionals, and she has had to turn to her two older daughters for assistance. She has successfully juggled her work obligations with her very onerous responsibilities on the home front, but at enormous personal cost to herself. The Applicant has appropriately reached out to the Children’s Aid Society for support and assistance in meeting Mason’s high needs in her home. Mason’s needs are so intense and demanding that Children’s Aid Society staff have discussed with the Applicant the option of residential care for Mason. However, the Applicant is reluctant to place Mason in a group home and has persevered in attempting to manage his needs in her home. Her sincere love, devotion and commitment to Mason, and her incredible stamina and perseverance in meeting his needs, are patently clear. Truly, words cannot express the extent to which she should be commended for her efforts and sacrifices relating to her son.

24All of the evidence summarized above resoundingly supports an order for sole custody in the Applicant’s favour. It is also appropriate in this case to make orders permitting the Applicant to travel outside of Canada with Mason, and to address any documentation issues regarding the child, without the Respondent’s consent. The Applicant has experienced constant difficulty keeping track of the Respondent since Mason’s birth. The Respondent has always adamantly refused to disclose his address, even when he took Mason for visits to his home, and he has frequently disappeared from Mason’s and the Applicant’s lives for extended periods of time. It is clear from the Applicant’s evidence that the Respondent deliberately withholds his address and the details regarding his employment so as to avoid enforcement of his child support obligation. As I have stated, the Respondent has regularly gone into arrears of child support, and he has not kept the FRO apprised of his address or employment status. The FRO has regularly reached out to the Applicant in an attempt to obtain this information so that it can take enforcement measures. The Applicant should not be required any longer to chase down the Respondent to obtain his signature or consent to travel with Mason, or to obtain, replace or renew important documents such as Mason’s passport, social insurance card, health card and birth certificate.

25With respect to access, the evidence supports an order providing for access to the Respondent in the discretion of the Applicant, including the discretion to not permit access if the Applicant is of the view that access would be contrary to Mason’s best interests. The Applicant has a longstanding history of allowing reasonable access, but also structuring access arrangements in a manner that is sensitive to Mason’s needs. I have no doubt that she would exercise her discretion regarding access in a fair and reasonable manner, and that she will maintain a proper focus on Mason’s best interests in making decisions regarding access.

PART IV: CHILD SUPPORT ISSUES

I. THE APPLICANT’S POSITION

PART IV: CHILD SUPPORT ISSUES

26The Applicant seeks an order increasing the Table amount of child support payable by the Respondent and requiring the Respondent to contribute to Mason’s section 7 expenses. She is requesting both heads of relief on a retroactive and ongoing basis. Dealing first with adjustments to the Table amount, she was unclear about how far back she wanted the retroactive award to reach. Her hope was that upward adjustments could be made as far back as 2005, which was the year after the parties executed the Agreement. Her position is that income should be imputed to the Respondent, based on his refusal to provide updated financial disclosure since the execution of the Agreement and evidence that she states supports a finding that his income has likely increased significantly over the years. Her suggestion was that a gradually increasing annual income be imputed to the Respondent from 2005 onward, and that his income be imputed at $100,000.00 from 2016 onward.

27With respect to section 7 expenses, the Applicant seeks contribution from the Respondent for medical, dental and vision expenses, the cost of an extended benefits plan that she purchased in 2016, daycare expenses including summer camp programs, a gym membership and the cost of a physical trainer, and extracurricular activity expenses. Her position is that the Respondent should be required to pay the entire cost of the medical and dental expenses and the benefits premiums, given that he has ignored requests for disclosure of his income information and proof as to whether he has a benefits plan available to him and Mason. She argued that the Respondent should also be required to pay a higher proportion of all other claimed expenses, having regard for numerous other burdensome expenses and losses that she has to incur due to Mason’s extensive special needs, including mileage and parking for medical appointments and lost work shifts and overtime opportunities to address emergencies relating to Mason and take him to his appointments.

II. THE LAW

A. The Effect of Filing a Separation Agreement under section 35 of the Family Law Act, and the Appropriate Procedure for Varying the Child Support Terms of the Agreement

The Law

28The first issue to be determined in addressing the child support issues in this case is whether the legal principles regarding originating proceedings apply, or whether the law respecting variation of child support is applicable. As I have indicated, the Applicant filed the Agreement respecting child support with this court on June 17, 2004, so that it could be enforced by the FRO. Section 35(1) of the Family Law Act, R.S.O. 1990, c. F-3, as amended, sets out the right of a party to a separation agreement to file the agreement with the Ontario Court of Justice or the Family Court of the Superior Court of Justice. It provides as follows:

Domestic contract, etc., may be filed with court

35. (1) A person who is a party to a domestic contract may file the contract with the clerk of the Ontario Court of Justice or of the Family Court of the Superior Court of Justice together with the person’s affidavit stating that the contract is in effect and has not been set aside or varied by a court or agreement. R.S.O. 1990, c. F.3, s. 35 (1); 2006, c. 1, s. 5 (2); 2006, c. 19, Sched. C, s. 1 (2, 4); 2009, c. 11, s. 32 (1).

29Section 35(1) refers to a “domestic contract,” which is defined in section 51 of the Family Law Act as including a separation agreement. The effect of filing a separation agreement with the court pursuant to section 35(1) is to give any child support provisions in the agreement the same status as an order made under the Family Law Act (Everett v. Everett, 1991 CarswellOnt 275 (Ont. U.F.C.); Jasen v. Karassik, 2009 CarswellOnt 1507 (Ont. C.A.); Alexandrova v. Alexandrov, 2017 ONSC 1313 (S.C.J.)). This result is evident from section 35(2) of the Act, which provides as follows:

35. (2) A provision for support or maintenance contained in a contract that is filed in this manner,

(a) may be enforced;

(b) may be varied under section 37;

(c) except in the case of a provision for the support of a child, may be increased under section 38; and

(d) in the case of a provision for the support of a child, may be recalculated under section 39.1,

as if it were an order of the court where it is filed. 1997, c. 20, s. 5; 2006, c. 1, s. 5 (3); 2014, c. 7, Sched. 9, s. 5.

30Given that the parties in this case were never married, the analysis of the child support issues is governed by section 37 of the Act and the general principles relating to variation of child support. With respect to procedure, Rule 8(2) of the Family Law Rules, O. Reg. 114/99, as amended, provides that a party who wishes to change an agreement for support filed with the court under section 35 of the Family Law Act may do so only by way of Motion to Change Final Order under Rule 15. However, there is an exception where the party also wishes to make one or more related claims regarding issues not raised in the agreement, in which case Rule 8(2.1) provides that the request to change child support may be advanced in the context of an originating proceeding along with the other claims. Since the Applicant has also advanced originating claims respecting custody and access, she was entitled by Rule 8(2.1) to include her claims to change child support in her application rather than filing a Motion to Change child support.

B. Statutory Framework and General Principles Applicable in a Child Support Variation Proceeding under the Family Law Act

Statutory Framework and General Principles

31Section 37 of the Family Law 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.

32The powers of the court in a child support variation proceeding 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.)).

33A proceeding to vary child support is not an appeal of the original order. The court hearing the case must assume that the existing order accurately addressed the financial needs of the child 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).

34Section 37(2.1) of the Family Law Act reinforces the general principle that a child support variation proceeding 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.

35In 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, (2nd 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 held in Gray v. Rizzi, 2016 ONCA 152 (C.A.) 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. Section 17(4) of the Divorce Act specifically stipulates that the change in circumstances required to meet the threshold test for a variation of child support must have occurred “since the making of the child support order or the last variation order made in respect of that order.” Although section 37(2.1) does not specify that the change must have occurred since the last order was made, common sense dictates that this requirement applies equally to a variation proceeding under the Family Law Act.

36The 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. (4th) 1 (S.C.C.); Marinangeli v. Marinangeli, 2003 CanLII 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.)). 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 a circumstance that was known or contemplated when the order or agreement was made can later be relied upon in 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 for any reason 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).

37Section 14.1 of the Guidelines is critical 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.

38Once the court dealing with a support variation proceeding has determined that a material change in circumstances has occurred, it must decide what variation of the existing order, if any should be made having regard for the change (Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 (S.C.C.); Punzo v. Punzo, 2016 ONCA 957 (C.A.)). This analysis requires consideration of the parties’ respective incomes, determination of the appropriateness of any retroactive and ongoing claims, and calculation of the quantum of support payable based on the applicable legislation and Guidelines. I turn now to the law respecting these issues.

C. Income Determination

1. General Principles

Income Determination

39As indicated earlier in these Reasons, the Applicant relies on alleged increases in the Respondent’s income since 2004 in support of her claim for a variation of child support. An analysis of the Respondent’s income is therefore necessary. Findings respecting the Applicant’s historical and current income are also necessary, since the Applicant is claiming contribution to section 7 expenses, and her income is relevant to how those expenses should be apportioned between the parties.

40Sections 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 of the Guidelines. 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.

41Section 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. 5). Section 16 does not require the court to 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 intention of section 16 is to direct the court 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, if possible, 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.

42Schedule III to the Guidelines must also be carefully considered in determining the parties’ incomes for support purposes, as it sets out a number of adjustments that must be made to income. For the purposes of calculating the Table amount of child support, section 3 of the Schedule provides that any spousal support received from the other parent or spouse and any universal child care benefit that is included to determine the parent or spouse’s total income in the T1 General tax form must be deducted. Section 3.1 establishes special rules for the calculation of income for the purpose of determining an amount under section 7 of the Guidelines. Specifically, it requires the deduction of spousal support paid to the other spouse from the payor’s income, and requires the following adjustments in respect of universal child care benefits:

(a) deduct benefits that are included to determine the parent or spouse’s total income in the T1 General form issued by the Canada Revenue Agency and that are for a child for whom special or extraordinary expenses are not being requested; or

(b) include benefits that are not included to determine the parent or spouse’s total income in the T1 General form issued by the Canada Revenue Agency and that are received by the spouse for a child for whom special or extraordinary expenses are being requested.

43Section 4 of Schedule II directs that any amount of social assistance income that is not attributable to the parent or spouse should be deducted.

2. Imputation of Income

44A critical issue in this case is whether the court should impute income to the Respondent for any years since 2004. 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).

45Income 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.), Morden). 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.); Korman v. Korman, 2015 ONCA 578 (C.A.)). Moreover, although a parent’s income for support purposes under the Guidelines is presumptively calculated based on the sources of income set out in the T1 Income Tax Return, income can be determined other than on the basis of that presumptive income (Korman, at para. 51). As the Ontario Court of Appeal stated in Korman, at para 51:

[t]he courts retain discretion to impute income to a payor spouse in excess of that spouse’s presumptive income where the imputed income is supported by the evidence and is consistent with the objective of establishing “fair support based on the means of the parents in an objective manner that reduces conflict, ensures consistency and encourages resolution” Bak, at para. 36; Drygala v. Paul (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711, 29 R.F.L. (5th) 2983 (Ont. C.A.), at para 44.”

46The imputation of income to a party is a fact-driven exercise that turns on the unique circumstances of the case before the court (Bak, at para. 73; Korman, at para. 49). 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.); Froelich-Fivey v. Fivey, 2016 ONCA 833 (C.A.)).

47The 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). However, where the issue of the support payor’s income is raised, the payor has an obligation to disclose all evidence 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.

D. Retroactive Child Support

1. General Principles

Retroactive Child Support

48The Applicant is advancing significant claims for retroactive increases to the Table amount of child support payable, and for retroactive contributions to section 7 expenses under the Guidelines. A review of the general principles that apply to claims for retroactive support is therefore necessary.

49The Supreme Court of Canada’s decision in D.B.S. v. S.R.G., 2006 SCC 37 (S.C.C.) is the leading case on the issue of claims for retroactive child support. In that case, the court held that there is no automatic right to pursue retroactive child support. It canvassed in detail the various considerations and interests that come into play in retroactive support cases, including the child’s and custodial parent’s need for financial support, the payor’s interest in certainty and predictability when financial obligations appear to be settled, and the need for flexibility in order to ensure a just result. However, it emphasized that ultimately, the analysis of child support issues must always be undertaken with a focus that remains primarily on the interests of the child. It held that such claims must be considered keeping in mind the following core principles that apply to all child support claims:

1. Child support is the right of the child that arises upon the child’s birth and exists independent of any statute or court order. It survives the breakdown of the parents’ relationship.

2. Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together. The amount of child support owed will vary based upon the income of the payor parent.

3. When retroactive child support is sought, the court must as a starting point analyze the statutory scheme in which the application is brought to determine if it establishes parameters or guidelines regarding retroactive claims.

4. It is the responsibility of both parents to ensure that a payor parent satisfies their actual child support obligation. However, since child support is fundamentally the child’s right, the child should generally not be left to suffer if one or both parents fail to monitor child support payments vigilantly. Where either or both parents fail in their obligation, the court may grant relief to correct the failure.

5. 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. Accordingly, any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.

50The court reviewed the situations in which claims for retroactive child support arise. With respect to situations as in this case where the child support obligation was set out in a domestic contract, the court held that agreements reached should in most circumstances be given considerable weight in dealing with retroactive claims. However, it emphasized that where circumstances change, or were not as they appeared when the agreement was executed, and it becomes apparent that the payor did not satisfy their actual support obligation, the court may order a retroactive award in appropriate circumstances if the applicable legislation allows it (at para. 78).

51The court in D.B.S. ultimately adopted a highly discretionary approach to retroactive child support claims, and outlined the following general factors which judges should consider in determining whether to allow retroactive relief:

1. Whether there was a reasonable excuse for why the claimant did not pursue child support or increased child support earlier.

2. The conduct of the payor parent, including whether the payor behaved in a blameworthy manner in relation to child support.

3. Consideration of the present circumstances of the child, and the extent to which they may benefit from a retroactive award.

4. Any hardship that may be occasioned by a retroactive order.

52Bastarache, J. emphasized in D.B.S. that none of the above-noted considerations was decisive, and that the court carrying out the analysis of a retroactive claim should at all times “strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix” (at para. 99). He stressed that although retroactive awards are a matter of judicial discretion, they should by no means be considered exceptional (at para. 97). As the court stated at para 97:

It cannot be exceptional that children are returned the support that they were rightly due. Retroactive awards may result in unpredictability, but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amount of support first arose.

2. Delay by the Claimant

53In D.B.S., the court elaborated upon the factors relevant to a retroactive claim. On the issue of the recipient’s delay in commencing a claim, it indicated that the court must be sensitive to the practical concerns associated with child support proceedings. Explanations for delay which it considered to be reasonable included intimidation by the support payor, well-founded fear that the payor would react vindictively to a support application, lack of financial or emotional means to commence an application and inadequate legal advice (at para. 101). In Connelly v. McGouran, 2007 ONCA 578 (C.A.), the Ontario Court of Appeal emphasized that since the right to child support is that of the child, delay by the recipient in advancing a claim is merely one factor to consider in balancing the competing interests of the party and the child and in determining the most appropriate court of action on the facts of the case (at para. 17). It also emphasized that conduct of the payor is frequently an important factor in assessing the reasonableness of the recipient parent’s delay in commencing litigation.

3. Conduct of the Payor

54The Supreme Court of Canada also expanded upon the issue of the payor’s conduct in D.B.S. It stated that both positive conduct and blameworthy conduct are relevant to the analysis, and emphasized that blameworthy conduct by the payor is not a pre-requisite to success on a retroactive claim (at para 98). (see also Goulding v. Keck, 2014 ABCA 670 (C.A.), at para. 48). However, it held that the payor’s interest in certainty is least compelling where they have engaged in blameworthy conduct in relation to their child support obligation. The court specifically encouraged the courts to take an expansive view of what constitutes “blameworthy conduct” in the context of analyzing a retroactive support claim, and characterized the phrase as encompassing “anything that privileges the payor parent’s own interests over his/her child’s right to an appropriate amount of support.” (at para. 106). Examples of blameworthy conduct that it felt would militate in favour of allowing a retroactive claim included hiding income increases from the recipient in the hope of avoiding a larger support award, intimidating the recipient to dissuade them from advancing a support claim and misleading the recipient into believing that their support obligations were being met when they know that they are not (at para. 106). In its discussion about blameworthy conduct of a payor, it emphasized that a payor cannot simply hide their income increases from the recipient parent in the hopes of avoiding larger child support payments. The court also emphasized that a payor parent who knowingly avoids or diminishes their support obligation to their children should not be allowed to profit from such irresponsible conduct. At the same time, however, the court noted that a payor who does not automatically increase support payments when their income increases is not necessarily engaging in blameworthy conduct that may influence the retroactive support analysis. In such circumstances, the issue of whether the conduct is inappropriate is a matter for the court’s discretion (see also Rosenberg v. Gold, 2016 ONCA 665 (C.A.)). An important consideration will be whether the payor had a reasonably-held belief that they were meeting their support obligations. A helpful objective indicator for assessing the reasonableness of their belief on this issue is the extent to which the child support they were paying diverges from the amount that they should have been paying (at para. 108; see also Baldwin v. Funston, 2007 ONCA 381 (C.A.)).

4. Circumstances of the Child

55In D.B.S., the Supreme Court of Canada went on to discuss the circumstances of the child that may be relevant to the retroactive support analysis. It stated that the court should consider both the present and past circumstances of the child in deciding whether a retroactive award is justified, so as to determine the extent to which the child would benefit from a retroactive award. Evidence that the child has suffered hardship due to insufficient support in the past and/or the present may support a retroactive award. On the other hand, “[a] child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than a child who is currently in need” (at para. 111). However, even in such circumstances, retroactive relief may be appropriate if the child suffered hardship in the past when support or higher support should have been paid. As the court stated, “[a] child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award” (at para. 113). In Goulding, the Alberta Court of Appeal highlighted that the requirement of considering the circumstances of the child does not impose a burden on the recipient parent to prove “significant need” on the part of the child in order to succeed on a retroactive claim. As the court stated, “A payor parent cannot avoid a retroactive award by arguing that, despite his or her past default, the recipient was able to sufficiently care for the child on his or her own (at para. 51; see also Swiderski v. Dussault, 2009 BCCA 461 (C.A.) at para. 42).

5. Hardship Occasioned by a Retroactive Award

56Finally, in regard to the factor of hardship occasioned by a retroactive award, the Supreme Court of Canada noted in D.B.S. that “a broad consideration of hardship is also appropriate in determining whether a retroactive award is justified” (at para. 114). It stressed that hardship considerations in the context of this analysis are not limited to the payor, since a retroactive award could also cause hardship to the payor’s other children. The court added that hardship will be much less of a concern where it is the by-product of the payor’s blameworthy conduct (at para. 116). The court also emphasized that concerns regarding potential hardship can in some cases be mitigated by crafting the retroactive order in a way that spreads payment of any arrears over a period of time.

57Cases decided since D.B.S. have highlighted the need for the payor to establish clear evidence from which a reasonable finding of hardship can be made, and that hardship is not simply established by the fact that the payor will have to pay a significant retroactive award (Goulding, at para. 58). In addition, the case-law has clarified that the assessment of hardship in the context of the retroactive support analysis is less stringent than that required to establish “undue hardship” within the meaning of s. 10 of the Guidelines (T.(L.C.) v. K. (R.), 2017 BCCA 64 (C.A.)).

6. Applicability of the D.B.S. Factors Where the Payor is in Arrears of a Child Support Order or Agreement

58The factors that the Supreme Court of Canada articulated in D.B.S. reflect the court’s goal of achieving a fair and just balance between the competing interests at play in the context of retroactive child support claims. The payor’s need for certainty and predictability in managing their financial affairs was a significant factor underlying the court’s analytical framework. However, on this issue, the court emphasized that a payor who is in arrears of their child support obligation cannot rely on their interest in certainty and predictability in defending a retroactive claim, given their non-compliance with the order or agreement (at para. 98). The Ontario Court of Appeal recently reiterated in Gray v. Rizzi that a payor who has been delinquent in their child support obligations cannot rely on the principle of predictability as a shield in the face of a retroactive claim to avoid paying the full amount of support to which their child was entitled (at para. 51). A successful defence in such circumstances must be founded on other considerations.

7. The Timing of a Retroactive Child Support Award

59Once the court determines that a retroactive child support order is appropriate, it must address the appropriate date from which retroactive relief should begin. The court addressed this issue as well in D.B.S. It established that generally, a retroactive child support order should commence as of the date that effective notice is given to the payor. It described “effective notice” as “any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated” (at para. 121). The concept of effective notice does not require the recipient parent to take any legal action. Bastarache, J. described the concept of “effective notice” as any indication by the recipient parent that child support should be paid or re-negotiated and adjusted to an appropriate level. All that is required to establish effective notice is that the topic of child support was raised. The court concluded that using effective notice as the starting point for the timing analysis strikes a fair balance between certainty for the payor and flexibility to achieve justice. However, it held that even where effective notice has been given, it will usually be inappropriate to delve too far into the past. The court discussed the responsibility of a recipient payor to move discussions regarding support forward and to take further action if negotiations do not result in acceptable outcomes. If they fail to do so, “a prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest in certainty has returned.” (at para. 123). The court concluded that in the interests of certainty, predictability and ensuring that child support claims are prosecuted in a reasonably timely manner, a general guideline is necessary for determining how far back a retroactive award should reach. The court concluded that as a general rule, it will be inappropriate to make a support award retroactive to a date more than three years before formal notice of a claim was given to the payor parent.

60Having set a rough guideline for how far back retroactive relief should extend, the court in D.B.S. nonetheless emphasized that a retroactive award may, in appropriate circumstances, extend further back than three years from the date of formal notice, and even as far back as the actual date when child support should have begun or been readjusted. As examples of when a more far-reaching retroactive award may be appropriate, the court discussed circumstances where the payor demonstrated blameworthy conduct, including engaging in intimidating tactics, lying to the recipient, failing to advise the recipient of material changes in circumstances or withholding important information that the recipient requires to make an informed decision about a child support claim. Evidence of such blameworthy conduct “will move the presumptive date of retroactivity back to the time when circumstances changed materially,” since “[a] payor parent cannot use his/her informational advantage to justify his/her deficient child support payments” (at para. 125). (see also S.P. r. R.P., 2011 ONCA 336 (C.A.)).

8. Quantification of Retroactive Child Support

61Finally, with respect to the quantum of child support that should be awarded in retroactive claims, the court determined in D.B.S. that this issue should be governed by the provisions of the statutory scheme that applies to the award being ordered. Accordingly, the Guidelines must be followed in determining the quantum of support payable. However, the court also noted the judge hearing the case must nonetheless ensure that the quantum of a retroactive order fits the circumstances. In the context of this discussion, it reviewed some of the situations in which the Guidelines permits a deviation from the Table amount of child support. In addition to those specific situations, the court held that the trial judge has a general discretion with respect to the quantum of retroactive awards, and emphasized that “[u]nless the statutory scheme clearly directs another outcome, a court should not order a retroactive award in an amount that it considers unfair, having regard to all of the circumstances of the case” (at para. 130). The court noted that one way in which the court can exercise its discretion to achieve a fair and reasonable outcome respecting quantum is to alter the time period that the retroactive award captures. For example, if the recipient took an unreasonable amount of time to advance their claim after giving effective notice, the court could set the commencement date for the retroactive award later than the date when the recipient gave effective notice (at para. 130). The court added that the court should craft a retroactive award in a way that minimizes hardship to the payor and any other children (at para. 116).

E. Calculation of Child Support

Calculation of Child Support

62The Sections 37(2.2) to 37(2.6) of the Family Law Act and the provisions of the Guidelines provide the framework within which the court is to undertake the calculation of child support in a variation proceeding. The object of the child support provisions set out in the Act and the Guidelines is to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient (D.B.S.; Ethier v. Skrudland, 2011 SKCA 17 (C.A.); Geran v. Geran, 2011 SKCA 55, 2011 CarswellSask 333 (C.A.)).

63Section 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.

64Turning to the relevant provisions of the Guidelines, it should be noted that 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.

65Section 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

(f) extraordinary expenses for extracurricular activities.

66Section 7(2) of the Guidelines provides that the guiding principle in determining the amount of an expense set out in section 7(1) is that it is shared by the parents in proportion to their respective incomes, after deducting from the expense the contribution, if any, from the child. In determining the amount of an expense referred to in section 7(1), the court must also by virtue of section 7(3) take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit.

67In Titova v. Titov, 2012 CarswellOnt 15666 (C.A.), the Ontario Court of Appeal set out the following steps for determining whether to make an award for section 7 special or extraordinary expenses:

1. Calculate each party’s income for child support purposes;

2. Determine whether the expense in question falls within one of the enumerated categories set out in section 7 of the Guidelines;

3. Determine whether the expense is necessary in relation to the child’s best interests and is reasonable in relation to the means of the parties and to those of the child and to the spending pattern prior to separation;

4. If the expense falls under section 7(1)(d) or (f), determine if the expense meets the definition of “extraordinary;”

5. Consider what amount, if any, the child should reasonably contribute to the payment of the expense; and

6. Finally, apply any tax deductions or credits to reach the net amount of the expense.

68An appreciation of the means of the parties is a key element of the analysis of section 7 claims. The Supreme Court of Canada and the Ontario Court of Appeal have defined the term “means” as encompassing all financial resources, capital assets, income from employment and any other source from which the party derives gains or benefits (Strang v. Strang, 1992 CanLII 55 (SCC), [1992] S.C.J. No. 55 (S.C.C.); Leskun v. Leskun, 2006 SCC 25, [2006] S.C.J. No. 25 (S.C.C.); see also Mason v. Mason, 2016 ONCA 725 (C.A.) at para. 68).

III. ANALYSIS OF THE CHILD SUPPORT ISSUES

A. Issue #1: Has There Been a Material Change in Circumstances Since the Agreement dated June 14, 2014?

Analysis of the Child Support Issues

69The first issue to determine in this case is whether there has been a material change in circumstances since the parties executed the Agreement that satisfies the threshold test for a Motion to Change child support. The Applicant submitted that Mason’s financial needs have changed dramatically since 2004. In addition, she argued that the Respondent should be imputed a much higher income than $44,500.00, which the existing support award was based on. I agree with her on both points, and I find that these changes satisfy the threshold test for advancing a variation of child support. I will address each of these issues in turn.

1. Changes in Mason’s Needs

70Mason was only 4 months old when the parties executed the Agreement. As I have discussed above, he has since been diagnosed as suffering from numerous medical, psychological and psychiatric conditions, as well as a Learning Disability. The Agreement did not address section 7 expenses, because it appears that the Applicant was not incurring any such expenses at the time. However, for the past several years, she has had to incur significant section 7 expenses relating to Mason on account of both his basic health and child care needs and his special needs arising from his various conditions. As I will discuss in further detail below, these expenses have included dental expenses, prescription medication expenses, vision expenses, child care and onerous premiums for a benefits plan. Moreover, the childcare needs for Mason have become more urgent and specialized. As discussed above, Mason requires close supervision and care by a mature and competent caregiver due to his gorging and aggressive tendencies. The Applicant has not been able to implement this type of child care while she is working due to her inability to afford this type of care. As a result, she has had to rely primarily on her teenage daughter to assist her. However, I find that her daughter is not able to manage all of Mason’s basic needs, his behaviour and his obsession with eating. In addition, Mason requires a clear regimen of physical training and exercise due to his genetic condition. The Applicant has asked the Respondent for financial assistance in covering these extra costs on a regular and consistent basis. However, the Respondent has refused to contribute and has actively avoided efforts by the Applicant and the FRO to enforce even his basic Table amount of support. The Applicant has tried her very best to stay afloat financially with all of these demands upon her. She has held down two jobs until recently, while at the same time juggling the demanding responsibilities of meeting the needs of Mason and her older daughter. However, I find that she is unable to finance all of Mason’s critical needs on her own, and that she desperately requires additional support to do so.

2. Increases in the Respondent’s Income

71I also agree with the Applicant that it is appropriate to impute income to the Respondent, and that these increases constitute a material change in circumstances within the meaning of section 37 (2.1) of the Family Law Act. I am imputing income to him commencing in 2007, which was three years after the Agreement was signed. By way of overview, my decision to impute income to him is based on the Respondent’s consistent refusal since 2004 to disclose his income to the Applicant, clear efforts on his part to actively conceal his income and sources of income and evidence regarding changes in his employment since 2004. In short, it is patently obvious from the evidence adduced by the Applicant that the Respondent has had a vested interest in concealing his true income from her and from the FRO.

72I find that when the parties executed the Agreement in 2004, the Respondent was working as a seasonal landscape labourer, earning approximately $44,500.00 per year. As I have already indicated, the Applicant requested updated income disclosure from him on a regular basis thereafter, but the Respondent did not comply with these requests and disappeared for extended periods of time. The Applicant has no information regarding the Respondent’s actual employment from 2004 until 2008. However, she testified that in 2008, she was able to connect with the Respondent and asked him again for updated income disclosure. I find that the Respondent again refused to comply, became very heightened with the Applicant, and threatened that “there would be many dead bodies lying around” if she pursued increased support from him. I accept the Applicant’s evidence that by 2010, she determined that the Respondent was identified as the lead hand for OMNI Basements on that company’s website. The Respondent was in arrears of support at that time, and therefore the Applicant reported the Respondent’s apparent employment with OMNI Basements to the FRO. I accept the Applicant’s evidence that the FRO was able to garnish one of the Respondent’s paycheques from OMNI Basements, and that the Respondent then abruptly left this employment and disappeared again. This was a pattern that occurred frequently when the FRO caught up with the Respondent and began to enforce the child support obligation.

73The Respondent’s serious intimidation tactics in 2008, his active efforts to conceal his income after 2004, the information regarding his employment status in 2010 and his decision to “go underground again” immediately after the FRO garnished his pay in 2010 support a finding that his income had increased substantially by at least 2007. In addition to contracting work, he had landscaping experience that he could have relied upon to earn additional income. I conclude that a reasonable estimated hourly wage for a contractor with special expertise and an experienced landscaper is approximately $25.00 per hour. The Respondent does not have any children in his care, and therefore he could have worked overtime, for a total of at least 50 hours each week. The annual income based on this information would be $65,000.00. I impute this income to the Respondent effective January 1, 2007.

74The Applicant’s belief is that in more recent years, the Respondent has been in partnership with his brother in some type of business that requires the use of diesel trucks. She testified that she has been able to link both the Respondent’s and his brother’s cell phone numbers with several Kijiji ads under a landscaping name for the sale of diesel trucks. Given that the Respondent has a history of employment in landscaping, she suspects that he and his brother now own a landscaping or related business, and that they sell their trucks on the internet after they are used for a period of time. She also testified that when the Respondent picked Mason up from her home for visits in 2013 and 2014, she saw him in a new diesel truck. She noted that the Respondent would park down the street from her home so that she would not see the type of vehicle he drove, the licence plate or any business names on the vehicle. Given all of this evidence, it is reasonable to conclude that the Respondent was either the owner or partner in a business that was involved in landscaping, and possibly contracting work as well. The Applicant indicated that in addition to his main line of work, she believes that the Respondent was involved in on-line sales for some type of skin product at the time that she commenced this application in 2015. This belief is based on the fact that a google search for the Respondent’s name came up with a reference to a website that appeared to be related to sales of a “nerium skin care” product line. Based on all of this evidence, it is reasonable to conclude that the Respondent could have earned in the range of $37.00 to $40.00 per hour as early as 2013. Again, he could have easily done overtime work given his lack of child care responsibilities. Based on a 50 hour work week, I conclude that it is reasonable to impute an income of $100,000.00 to him commencing January 2013.

75The Respondent’s conduct since the Applicant gave him notice that she intended to commence this proceeding further supports my decision regarding imputation of income to him. I accept the Applicant’s evidence that when she indicated to the Respondent in June 2015 that she intended to serve court papers on him to address support issues, the Respondent amped up his efforts to conceal any possible personal contact information. For instance, he removed the reference to his name on the internet linking him to the nerium skin product line, removed his personalized message from his voice mail on his cell phone and ceased all communication with the Respondent. When the evidence is considered in its entirety, it is clear that the Respondent has significant concerns that disclosure of his actual income over the years since 2004 will result in a much higher support obligation respecting Mason.

76Based on my findings as set out above, I am satisfied that the changes in the Respondent’s income have been material and longstanding. Accordingly, in my view, they satisfy the threshold test for a motion to change child support.

B. Issue #2: Should the Applicant be Permitted to Advance Claims for Retroactive Child Support?

Issue 2: Retroactive Child Support Claims

77As I have stated, the Applicant requests retroactive increases to the Table amount of child support as of 2005, the year following the execution of the Agreement. In addition, she seeks contribution to various section 7 expenses respecting Mason on a retroactive basis, dating from 2009. Upon carefully considering the evidence in this case and the legal principles outlined above regarding retroactive child support, I am satisfied that a retroactive award is appropriate and necessary in the interests of Mason. However, I have concluded that retroactive relief should only extend back to January 1, 2008.

78I have considered the reasons for the Applicant’s delay in commencing court proceedings to change the child support terms of the Agreement, and I am satisfied that she has provided very valid reasons for that delay. These reasons are as follows:

1. The Applicant made numerous efforts throughout the years to resolve the child support issues with the Respondent, so as to avoid litigation. As I have stated, she repeatedly requested updated financial information from the Respondent as well as contribution towards Mason’s expenses. The Respondent repeatedly rejected these requests.

2. The Applicant was very credible in testifying about the tremendous difficulties that she and the FRO have had maintaining contact information respecting the Respondent. As I have indicated, the Respondent disappeared many times for extended periods. The FRO has frequently contacted the Applicant asking for contact information for the Respondent, and requesting that she make efforts to find him because he has gone into arrears of his support obligation many times. I find that locating the Respondent has been extremely difficult because he has made concerted efforts to conceal his address, vehicle information and any other information that could assist the Applicant in finding him. He has never given the Applicant his address, even when he was having access with Mason. His whereabouts have been unknown to the Applicant since June 2015, and she had to obtain an order for substitutional service of the court materials on him.

3. It is significant that in 2008, the Respondent engaged in intimidation tactics which caused the Applicant to be fearful about addressing his shortcomings regarding child support through court proceedings. As I have stated, the Respondent made a significant threat at that time that there would be many dead bodies lying around if the Applicant initiated court proceedings against him.

4. Finally, I find that there are very practical reasons for the Applicant’s delay in initiating this proceeding. As indicated above, Mason is an extremely high needs child, and this has taken a huge toll on the Applicant both emotionally, physically and financially. She had to maintain two part-time jobs, with overtime hours, for many years in order to meet the needs of Mason and her two daughters. She has been overwhelmed with the various appointments that Mason has required to ensure that his needs are met and his chances of success are maximized. She has had no support from either the Respondent or any other family members, other than her two daughters. In short, she has struggled greatly to meet the day-to-day challenges of addressing Mason’s needs. She has done a tremendous job at doing so, and I find that there was precious little time for her to address the child support issues through court proceedings. She has not had the financial means to obtain legal counsel, and this also contributed to the delay in initiating this proceeding.

79The discussion above is also relevant to the issue of the Respondent’s conduct. I find that he has engaged in extremely blameworthy conduct in regard to his child support obligation since the Agreement was executed. He has actively avoided providing his contact information to the FRO and the Applicant, and there is evidence indicating that he has changed his employment at times to avoid enforcement by the FRO. Furthermore, he has not contributed to Mason’s significant section 7 expenses, despite many requests from the Applicant for assistance. In fact, instead of supporting Mason and the Applicant emotionally and by providing care for the child, he has accused the Applicant of causing Mason’s mental health difficulties. As soon as the Applicant advised him of her intention to commence this court proceeding, he disappeared and cut off all contact with her in an effort to evade his responsibilities. Given his repeated efforts to dodge enforcement of his support obligation and the frequency with which he has gone into arrears, considerations regarding the desirability of certainty and predictability in favour of a payor parent should not be given any weight in this case. To put it bluntly, the Respondent has demonstrated bad faith with respect to his support obligations from the time that he executed the Agreement.

80Mason’s circumstances both in the past and currently have also guided my decisions regarding the Applicant’s retroactive claims. It is clear that many of Mason’s needs have not been fully met in the past, and that this continues to be the case, due to the Applicant’s inability to finance those needs on her own. For instance, Mason has for quite some time now required a highly competent, mature and responsible caregiver to supervise and care for him, and assist in taking him to his numerous appointments. However, as previously indicated, the Applicant has had to rely on her two daughters to watch Mason. Her younger daughter, Erika, is only 17 years of age. In addition, the Applicant has had to take much time off work and has lost many overtime opportunities in order to take Mason to his appointments. This situation has resulted in less income being available for the Applicant to meet Mason’s high needs. Mason has also required a stringent physical education routine and training program for a long time in order to manage the symptoms of his genetic condition. The Applicant has been unable to finance these needs on her income.

81Finally, I have considered the issue of hardship that could result from an order for retroactive child support. The Respondent did not serve and file an Answer and Claim, and there is no evidence before me to suggest that a retroactive award would result in hardship to him. There is no evidence to suggest that the Respondent has any other dependent children who would be negatively impacted by a retroactive award, and I am satisfied that his income level is such that he would be able to manage to pay both retroactive and ongoing support at the levels that I am ordering.

C. Issue #3: How Far Back Should a Retroactive Award Extend?

Issue 3: Timing of Retroactive Award

82Turning to the issue of how far back the retroactive order should reach, I have considered the evidence as to when the Applicant gave effective notice that she wished to review the child support provisions of the Agreement and make any appropriate adjustments. As I have indicated, the Applicant states that she has consistently raised the issue of support and requested that the Respondent contribute to special and extraordinary expenses since the parties executed the Agreement. She did not have any documentary evidence of her attempts to address the support issue with the Respondent. However, it is clear from the evidence that she requested financial disclosure from the Respondent in early 2008, when Mason was approximately 4 years old, and suggested to the Respondent at that time that child support be reviewed and adjusted if appropriate. The Respondent had a vivid recollection of her efforts to address child support at that time, and was extremely credible in stating that the Respondent made a threat to her at that point that there would be many dead bodies lying around if she pursued increased support. Based on this evidence, I find that January 1, 2008 is the date of effective notice for the purposes of the retroactive child support analysis.

83There was a significant delay from January 1, 2008 until the Applicant commenced this application to address the child support issues on December 17, 2015. It is therefore necessary to determine the date on which the Applicant gave the Respondent formal notice that she intended to address the issue of child support. I find that she gave formal notice on May 31, 2015. In reaching this decision, I have considered a text message exchange between the parties from May 29, 2015 until June 1, 2015. In a message dated May 29, 2015, the Applicant asked the Respondent some questions relating to Mason’s health needs, advised him that Mason had prescription medication and other expenses and asked if he had benefits through his employment to assist in covering some of the health-related expenses. She also asked the Respondent if he was willing to pay half of the expenses, and indicated that she would have to proceed to court for redress if he was unwilling to do so. The Respondent ignored the Applicant’s request regarding contribution to Mason’s expenses, and therefore the Applicant asked him on May 31, 2015 for his address for the purposes of serving court papers on him. The Respondent declined to provide his address for service, stating “note providing an address doesn’t mean it’s not going to happen. I’m moving.” The Respondent never in fact gave the Applicant his address following this text exchange. I conclude that the Applicant made it very clear to the Applicant on May 31, 2015 that she intended to commence court proceedings to address child support for Mason.

84The date of effective notice, January 1, 2008, is 7 years and 5 months prior to the date of formal notice in this case. However, the facts of this case clearly support making a retroactive award that extends further back than 3 years prior to the date of formal notice, and I conclude that January 1, 2008 is the appropriate date from which retroactive relief should commence. As I have already stated, any considerations regarding the desirability of predictability and certainty for the Respondent should be given little to no weight, having regard for the Respondent’s lack of respect for and compliance with the Agreement, and his concerted attempts to avoid his child support obligation. His acts of misconduct as described in these Reasons for Judgment are the precise type of acts that the Supreme Court of Canada stated in D.B.S. would support a decision to make retroactive relief effective from the date when child support should have been adjusted. Limiting the scope of retroactive relief to three years from the date of formal notice would in my view work an injustice on the facts in this case, since it would fail to recognize the extreme difficulties that both the Applicant and the FRO have experienced in attempting to locate and keep track of the Respondent’s whereabouts over the years. Extending the reach of the retroactive relief to January 1, 2008 is the outcome that is fair and just, taking into consideration the Respondent’s misconduct, Mason’s high needs and the struggles that the Applicant has experienced in caring for Mason and meeting his needs.

D. Issue #4: What are the Appropriate Adjustments to the Table Amount of Child Support?

Issue 4: Adjustments to Table Amount

85Based on the foregoing, the Table amount of child support payable by the Respondent to the Applicant should be adjusted effective January 1, 2008. I have determined that the Respondent should be imputed an annual income of $65,000.00 commencing January 1, 2007. Based on that income, the Table amount payable commencing January 1, 2008 would have been $601.00 per month. An order shall issue that the Respondent’s monthly child support be adjusted to this amount commencing January 1, 2008. The monthly Table amount based on this income changed to $594.00 per month effective January 1, 2012, and the child support payable as of that date should be adjusted accordingly. I have imputed the Respondent’s income at $100,000.00 commencing January 1, 2013. The Table amount payable based on that income is $880.00 per month. The Respondent is required to pay this amount of support effective January 1, 2013 and on an ongoing basis.

E. Issue #5: What Retroactive and Ongoing Contributions Should the Respondent Make Towards Mason’s Section 7 Expenses?

1. The Means of the Parties

Issue 5: Section 7 Expenses

86The Applicant has advanced claims for contributions from the Respondent on account of section 7 expenses dating back from 2009. As a preliminary issue, I note that the analysis of these claims involves consideration of the overall means of the parties. As I have indicated, section 7(1) requires the court to consider the parties’ means in deciding whether to require a payor parent to contribute to section 7 expenses. Information regarding the means of both parties, and in particular their incomes, is also required in order to quantify their respective contributions to the expenses. Accordingly, I turn first to the issue of the overall financial means of the parties during the period covered by the Applicant’s retroactive claim. In this regard, I note that the Applicant did not adduce any evidence respecting her income or overall financial means from 2009 to 2011. Accordingly, I decline to make an order for retroactive contribution to section expenses prior to 2012. I have already made findings respecting the Respondent’s income since 2007. Unfortunately, I am unable to engage in a thorough analysis of his general financial situation since 2012 due to his failure to comply with disclosure requests and to engage in this litigation. With respect to the Applicant, I make the findings set out below respecting her employment, income and general financial circumstances since 2012.

87From 2012 until January 2015, the Applicant worked as a part-time Emergency Clerk with Hamilton Health Sciences and also worked on a part-time basis for the Ontario Public Service (“OPS”) as a dispatcher for the Ontario Provincial Police in London, Ontario. In January 2015, she left her job in London and took a part-time position as an ambulance dispatcher for the OPS, within the Ministry of Health and Long Term Care. This position was located in Hamilton, and she decided to make this switch in her employment with the OPS because she was no longer able to make the long commute to and from London due to Mason’s high needs. She continued to work part-time with Hamilton Health Sciences in 2015. Her income for 2012 to 2015, after making the required deduction for union dues that she paid, was as follows:

2012: $76,783.00

2013: $82,456.00

2014: $92,213.00

2015: $88,000.00

88The Applicant’s income decreased in 2015 because the OPS position in Hamilton paid $3.00 per hour less than her job in London. I accept the Applicant’s evidence that she could no longer manage the job in London due to the struggles that she was experiencing meeting Mason’s child care needs and his numerous appointments. The decrease in her income was in my view clearly justified.

89The Applicant continued her part-time positions with OPS and Hamilton Health Sciences until early July 2016. At that point, her employment as an ambulance dispatcher with the OPS became full-time. Her income with the OPS decreased commencing July 2016 because she was enrolled in the employer’s benefits plan. Her year to date income as of September 28, 2016 was $60,823.71. Her bi-weekly pay was approximately $2,725.00, including overtime. Given that she had 7 more pay periods after September 28, 2016, I estimate that her total 2016 income from the OPS was approximately $79,833.00. The Applicant testified that she paid approximately $1,000.00 in union dues in 2016, and that she estimated that her total income from Hamilton Health Sciences for 2016 would be approximately $5,000.00. Based on this evidence, I conclude that the Applicant’s total 2016 income was approximately $83,833.00, after deducting the amount for union dues.

90With respect to 2017, the Applicant’s income will be lower because of her shift to full- time work with the OPS and her enrolment in the benefits plan. Her total income including overtime will be approximately $70,850.00 ($2,225.00 x 26 pay periods= $70,850.00). The sum of $5,000.00 must be included as her estimated total annual income from Hamilton Health Sciences. Taking into account estimated union dues of $1,000.00, a reasonable estimate of the Applicant’s anticipated total 2017 income is $74,850.00.

91I have carefully considered the overall financial circumstances and means of the Applicant. I find based on her evidence that despite her diligent efforts to maximize her income and her very decent and stable salary, she has struggled for many years to meet the basic needs of her two daughters and Mason’s very high needs. Her only significant asset is her home, which was subject to a mortgage of $305,000.00 as of December 2015. She has significant line of credit and student loan debts that she is unable to pay off at a reasonable rate. I am satisfied that her financial situation is unlikely to improve in the foreseeable future having regard for Mason’s needs.

2. The Appropriate Apportionment of Section 7 Expenses

92As I have indicated, I am allowing the Applicant to advance claims for retroactive contribution to section 7 expenses effective January 1, 2012. Before dealing with the specifics of the Applicant’s claims, I will address the Applicant’s general position respecting the approach that the court should take to the apportionment of any valid section 7 expenses. The Applicant does not support either an equal or proportionate-to-income sharing of expenses, and submits that the Respondent should pay a much higher proportion of Mason’s section 7 expenses than either of these approaches would yield. Her position is based on the Respondent’s misconduct over the years in relation to child support. With respect to health-related expenses in particular, she argued that the Respondent should reimburse her for the full sum of any such expenses that are not covered by insurance, given that he failed to advise her as to whether he had any benefits available to Mason through his employment.

93I am not persuaded that it is appropriate in this case to digress from the general principle outlined in section 7(2) of the Guidelines that the net amount of section 7 expenses should be shared by the parties in proportion to their respective incomes, after deducting from the expense the contribution, if any, from the child. While I appreciate that the Applicant has been struggling to meet Mason’s needs on her own, and that the Respondent has not stepped up to the plate in terms of his financial obligations respecting the child, the concerns regarding the Respondent’s lack of financial engagement with Mason have been largely addressed through this Judgment by awarding retroactive child support relief and imputing a significant amount of income to the Respondent. Furthermore, with respect to the suggestion that the Respondent failed to inform the Applicant regarding his benefits coverage, I note that the Respondent advised the Applicant in an email dated May 31, 2015 that he did not have benefits.

3. Findings and Rulings Respecting Section 7 Claims

2012

94I turn now to the specifics of the Applicant’s section 7 claims. Dealing first with the year 2012, she claims contribution towards the total fee of $200.00 that she incurred for Mason for a summer camp program with Circle Square Ranch. I find that this expense qualifies as a child care expense pursuant to section 7(1)(a), as the Applicant had to make arrangements for the care of Mason during her employment for the summer months. The expense was necessary, and I am satisfied that it was reasonable based on the parties’ respective incomes at the time. The net amount of this expense after adjustments for related benefits and tax deductions available to the Applicant in 2012 was $126.00. The Applicant’s income for section 7 apportionment purposes in 2012 was $76,783.00 and the Respondent’s income was $65,000.00. The Respondent’s proportionate share is 45.8%. The Respondent’s contribution is therefore $58.00.

2014

95The Applicant incurred the sum of $298.00 for eyeglasses for Mason in 2014. She did not receive any insurance reimbursement for medical expenses in 2014, as neither she nor Mason were covered on any benefits plan. This expense was in my view very reasonable and necessary in regard to the child’s best interests. The expense did not qualify for a tax credit. Based on the Applicant’s 2014 income for apportionment purposes of $92,213.00 and the Respondent’s imputed income for 2014 of $100,000.00, the Respondent’s proportionate share is 52%, or $155.00.

2015

96The Respondent incurred expenses for prescribed medications for Mason totalling $629.41 in 2015. In addition, she spent $159.98 for eyeglasses for Mason. These expenses were necessary and reasonable, having regard for Mason’s high medical needs. The Applicant did not receive any insurance reimbursement for these expenses, and there were no applicable tax credits in relation to the expenses. The Applicant’s 2015 income for s. 7 apportionment purposes was $88,720.00, and the Respondent’s imputed income was $100,000.00. The Respondent’s proportionate share of these expenses is therefore 53%, or $418.00.

97In addition, the Applicant incurred daycare expenses of $493.00 in 2015. These expenses were necessary as a result of her employment and the quantum is reasonable. The net amount of this expense was $299.00. The Respondent’s 53% share is therefore $158.00.

2016

98I find that the Applicant was experiencing considerable difficulty meeting all of Mason’s high medical and general health-related needs as of 2016, and that she foresaw, based on the child’s increasing needs, that these expenses would continue to rise. As a result, she made a very wise decision in January 2016 to pay into a benefits plan through her employment. She continued to pay into this benefits plan on a monthly basis until early July 2016, when she obtained full time employment. The monthly payment that she made for premiums for dental and medical benefits for Mason from January until June 2016 was $206.97. In addition, she made a payment of $83.00 on July 1, 2016. The total amount that she paid for benefits premiums for Mason was therefore $1,324.82. While this was a significant amount, I conclude that this expense was necessary having regard for Mason’s very high health needs at the time, and reasonable based on the parties’ respective incomes. In addition, the Applicant incurred dental expenses totalling $123.65 that were not covered by the benefits plan. The total net amount that she incurred for dental and medical premiums and dental expenses for Mason was $1,449.00. Based on the Respondent’s income of $100,000.00 and the Applicant’s 2016 income of $83,333.00, the Respondent’s proportionate share is 54.4%, or $788.00.

99The Applicant also spent $610.20 for Mason to attend a summer camp at Brick Works in 2016. This was a child care expense that was required due to the Applicant’s employment. I accept the Applicant’s evidence that the professionals involved with Mason had emphasized the importance of keeping him engaged during the summer due to his issues with social anxiety. The net amount of this expense after adjusting for related benefits and tax deductions was $364.00. The Respondent’s 54.4% contribution is $198.00.

100The Applicant requested contribution to soccer expenses relating to Mason in the amount of $150.00. Given the amount of this claim, the adjustment of the Table amount that the Respondent will be required to pay for 2016 as a result of this judgment and the Applicant’s 2016 income, I am not satisfied that this item qualifies as an extraordinary extracurricular expense within the meaning of section 7(1.1) of the Guidelines.

101Based on the foregoing, an order shall issue fixing the Respondent’s contributions to Mason’s section 7 expenses at $1,775.00 up to and including October 31, 2016.

Ongoing Expenses for Child Care Commencing 2017

102One of the most challenging issues that the Applicant is facing at this time with respect to Mason is his need for responsible and competent child care. As I have discussed, Mason must be closely monitored and managed due to his obsessive eating tendencies related to his genetic condition and his extremely challenging behaviours. These problems have been escalating. I find that the Applicant has made many diligent efforts to obtain public and other sources of funding to assist her in defraying the cost of appropriate child care, to no avail. Regular daycare facilities will not accept Mason due to his high needs. The Applicant has also consulted with staff from the Children’s Aid Society, who have raised the option of placing Mason in residential treatment due to the seriousness of his condition and needs. To date, the Applicant has had to either rely on her two daughters to assist her, put Mason in highly structured camp settings or take time off work in order to ensure that Mason remains safe. I accept that her daughters are not able to manage Mason’s behaviours effectively, and that this is placing Mason at risk of suffering harm in their care. It is therefore essential that the Applicant hire a private caregiver for Mason. A caregiver is required not only to supervise Mason while the Applicant is at work, but also to assist in taking Mason to his many appointments.

103Based on the Applicant’s work schedule, I find that she requires a private child care provider for Mason for a minimum of 56 hours per month during the school year. The Applicant’s child care needs will increase during the summer months when Mason is not in school. A reasonable wage for a mature and competent child care provider for Mason is at least $20.00 hour. Accordingly, the total estimated cost for child care expenses for Mason during the ten month school year is $1,120.00 per month. The estimated annual expense is $11,200.00. The net amount of this expense is $10,980.00. This amount should be pro-rated over the course of the year, resulting in a monthly amount of $915.00. Based on the Applicant’s 2017 income of $74,850.00 and the Respondent’s imputed income of $100,000.00, the Respondent should pay 57.2% of this expense, which translates into $523.00 per month. While this is a significant amount, I emphasize that the Respondent has provided no child care assistance to the Applicant whatsoever for the past several years. He cannot simply walk away from all child care responsibilities in relation to a high-needs child such as Mason and at the same time complain about the cost of providing alternative care.

104It is not possible to establish a reasonable estimate of the Applicant’s child care expenses for the summer months, as this will depend on whether Mason attends summer camps. Accordingly, the order that I am making will permit the Respondent to made additional claims on account of child care expenses for Mason for the months of July and August, including expenses relating to summer camps.

105Mason also has an urgent need for a highly structured physical fitness and training program due to his unique medical needs. I accept the Applicant’s evidence that Mason’s genetic condition renders him unable to maintain muscle mass, and places him at seriously high risk of becoming obese. The medical professionals involved with Mason have advised the Applicant that Mason’s health will be at serious risk if he does not engage in a regular, structured physical education program. I also accept that Mason requires a trainer to guide and assist him with his physical education program so that he can carry out the program safely and in a focussed manner. The Applicant advised that she has inquired about the cost of a gym membership, and has determined that $50.00 per month is the average fee. In addition, she is of the view that Mason requires a trainer twice a week, which would cost approximately $480.00 per month. The combined cost for a reasonable physical education program for Mason is approximately $530.00 per month. I am satisfied that this expense is an extraordinary extracurricular expense. The Applicant cannot manage this expense on her own having regard for her income and means, including the increased Table amount that she will be receiving further to this Judgment. While the amount of the expense is high amount, I conclude that it is absolutely required for Mason’s personal health, and that it is reasonable having regard for the parties’ incomes. The Respondent’s 57.2% contribution to this expense is $303.00 per month.

PART V: COSTS

PART V: COSTS

106The Applicant seeks costs in the amount of $2,144.00 in connection with the application. This figure is based on the following:

1. She lost a day of work on October 12, 2016 for the hearing of this matter, which resulted in lost wages, including overtime, of $540.00.

2. She lost $360.00 per day in wages for the court appearances on February 16, 2016, May 27, 2016, and July 21, 2016, and had to pay parking of $10.00 on each of those days.

3. She incurred disbursements of $23.00 to fax the court materials to the FRO and $169.00 for a private investigator to try to locate the Respondent so that she could serve him with the court documents.

4. She spent at least 10 hours preparing the court documents and preparing for court. Her hourly wage is $30.27.

107The starting point in addressing the issue of costs is section 131 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended, which provides that subject to the provisions of an Act or rules of court, costs are in the discretion of the court, which may determine by whom and to what extent the costs shall be paid. Rule 24 of the Family Law Rules, O.Reg. 114/99, as amended, sets out a number of principles to guide the court in the exercise of its discretion. The Ontario Court of Appeal established in Serra v. Serra, [2009] O.J. No. 1905, 2009 ONCA 395, 2009 CarswellOnt 2475 (C.A.) that modern rules respecting costs have the goal of fostering the following three fundamental purposes:

1. to partially indemnify successful litigants for the cost of litigation;

2. to encourage settlement; and

3. to discourage and sanction inappropriate behaviour by litigants.

108In determining how these objectives can be most appropriately achieved, the court must balance the goal of indemnifying the successful litigant for their costs with the importance of not unduly deterring potential litigants from pursuing legitimate claims for fear of overly burdensome cost consequences (Cassidy v. Cassidy, 2011 CarswellOnt 1541 (S.C.J.)).

109The Court of Appeal has highlighted the discretionary nature of costs awards, and the importance of the court considering all relevant factors (Andrews v. Andrews, 1980 CanLII 3619 (ON CA), [1980] O.J. No. 1503 (C.A.)). It has emphasized that although court rules respecting costs have circumscribed the broad discretion which section 131 of the Courts of Justice Act grants the court in regard to costs, they have not completely negated this discretion (M. (C.A.) v. M. (D.), 2003 CanLII 18880 (ON CA), [2003] O.J. No. 3707, 67 O.R. (3d) 181 (C.A.); 2003 CarswellOnt 3606 (C.A.)).

110As noted above, Rule 24 of the Family Law Rules sets out additional principles and guidelines that apply in determining costs in Family Law proceedings. The Rule sets out a number of factors relevant to the preliminary issue of liability for costs. Rule 24(1) establishes a presumption that a successful party to a motion, enforcement, case or appeal is entitled to costs. Rule 24(4) provides that this presumption does not apply where the successful party has acted unreasonably, in which case that party may be deprived of all or part of their costs or may be ordered to pay the unsuccessful party’s costs. Rule 24(7) stipulates that the absence of a party at a step in the case, or inadequate preparation to deal with the issues, create a presumption that costs should be ordered against the offending party. In these circumstances, the court may decide not to order costs if it is in the interests of justice that no costs be awarded. A finding that a party has acted in bad faith also results in liability for costs as against the offending party. Rule 24(8) provides that if a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. This costs provision is subject to the general principle that costs claimed must be reasonable.

111The circumstances discussed above are not the only ones which will give rise to liability for costs. Liability for costs must be assessed taking into consideration all of the facts and dynamics of the case. In deciding this issue, the overall reasonableness of each party’s conduct and the positions which they have taken in the litigation is an important consideration.

112Once liability for costs has been established, the court must determine the appropriate quantum of costs. In Serra Boucher v. Public Accountants Council (Ontario), 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 (C.A.), and Coldmatic Refrigeration of Canada Ltd. v. Leveltek Processing LLC, 2005 CanLII 1042 (ON CA), 2005 CarswellOnt 189 (C.A.), the Ontario Court of Appeal set out the additional general principles relating to the quantum issue:

1. Ultimately, costs decisions should reflect what the court considers to be a fair and reasonable amount that the unsuccessful party should pay.

2. Costs need to be proportional to the issues and amounts in question and the outcome of the case.

3. Amounts actually incurred by the successful litigant are not determinative.

4. In assessing what is fair and reasonable, the expectation of the parties concerning the amount of a costs award is a relevant consideration (see also Delellis v. Delellis, 2005 CanLII 36447 (ON SC), [2005] O.J. No. 4345 (S.C.J.); Hackett v. Leung, 2005 CanLII 42254 (ON SC), [2005] O.J. no. 4888 (S.C.J.)).

113Rule 24(11) sets out some of the factors which the court must consider in deciding the appropriate quantum of costs. These factors include the following:

FACTORS IN COSTS

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

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

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

(c) the lawyer’s rates;

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

(e) expenses properly paid or payable; and

(f) any other relevant matter.

114In considering the issue of costs, the court should consider Rule 24 in conjunction with Rule 2(2), which provides that one of the primary objectives of the Rules is to ensure that cases are dealt with justly. The court should also turn its mind to Rule 1(8), which provides that the court may respond to a failure to follow the Rules or abide by an order by making an order for costs.

115Where the court concludes that a party has acted in bad faith, Rule 24(8) directs the court to order costs against that party on a full recovery basis, payable immediately. This costs provision is subject to the general principle that costs claimed must be reasonable. The full recovery portion of the award should relate to the issues affected by the bad faith. Once the full recovery analysis is complete with respect to those issues, the court should assess costs in relation to the other issues by considering the overall circumstances of the case in light of the factors outlined in Rule 24(11), and should use the discretion permitted by that section to reach a correct overall result (Hunt v. Hunt, 2001 CarswellOnt 4548 (S.C.J.); Likins v. MacKenzie, 2003 CarswellOnt 3007 (S.C.J.); additional reasons at 2004 CarswellOnt 2157 (S.C.J.)).

116Applying the above-noted principles to the facts of this case, I conclude that an award of full indemnity costs in the amount that the Applicant has claimed is reasonable. The Applicant is clearly entitled to costs. She was successful in all of her claims, and her success was significant. I am satisfied that the Respondent has demonstrated bad faith. He actively avoided his child support obligation, did not respond to this proceeding and did not comply with his obligation in this case to provide a Financial Statement and financial disclosure. The Applicant has had to go to great lengths to ensure that Mason’s needs are met. The amount that she claimed is reasonable. It would have been much higher if she had retained counsel to assist her in addressing the difficult issues that this case raised. Accordingly, an order shall issue requiring the Respondent to pay the Applicant costs in the amount of $2,144.00, payable forthwith. Most of the materials in this case and the time spent at the hearing focussed on the child support issues. I am therefore ordering that 90% of the costs award, or $1,929.60, is on account of child support, and as such, is enforceable by the Director, FRO.

PART VI: TERMS OF ORDER TO ISSUE

PART VI: TERMS OF ORDER TO ISSUE

117Based on the foregoing, a final order shall issue as follows:

1. The Respondent is noted in default.

2. The Applicant shall have sole custody and primary residence of the child Mason Christopher Ryan Collins, born February 2, 2004 (“the child”).

3. The Respondent shall have access to the child at the discretion of the Applicant and supervised in the Applicant’s discretion. This discretion shall include the right to not permit access if the Applicant is of the view that access would be contrary to the child’s best interests.

4. The Applicant shall have the right to travel with the child both within and outside of Canada without the consent of the Respondent.

5. The Applicant shall have the right to apply for, renew and/or replace any documents relating to the child without the Respondent’s consent, including but not limited to the child’s birth certificate, passport, social insurance card and health card.

6. Paragraph 2 of the Separation Agreement dated June 14, 2004 is changed to provide as follows:

a. Commencing January 1, 2008 and continuing on the first day of each month that follows until December 31, 2011, the Respondent shall pay the Applicant child support for the child in the amount of $601.00, per month in accordance with the Tables under the Child Support Guidelines (Ontario) (the “Guidelines”) based on an imputed annual income of $65,000.00.

b. Commencing January 1, 2012 and continuing on the first day of each month that follows until December 31, 2012, the Respondent shall pay the Applicant child support for the child in the amount of $594.00, per month in accordance with the Tables under Guidelines based on an imputed annual income of $65,000.00.

c. Commencing January 1, 2013 and continuing on the first day of each month that follows, the Respondent shall pay the Applicant child support for the child in the amount of $880.00 per month in accordance with the Tables under the Guidelines based on an imputed annual income of $100,000.00.

7. Arrears owed by the Respondent to the Applicant on account of special and extraordinary expenses for the child pursuant to section 7 of the Guidelines up to and including October 31, 2016 are fixed in the amount of $1,775.00.

8. The Applicant’s income is $74,850.00 and the Respondent’s imputed income is $100,000.00. Commencing May 1, 2017 and continuing on the first day of each month that follows, the Respondent shall pay the Applicant the sum of $826.00 per month, which represents a 57.2% contribution to the following section 7 expenses relating to the child:

Child care: Total Monthly Expense: $915.00

Respondent’s Contribution: $523.00

Gym Membership

and training sessions: Total Monthly Expense: $530.00

Respondent’s Contribution: $303.00

9. The contribution to child care expenses referred to in paragraph 8 herein does not include child care expenses incurred during the months of July and August each year, including summer camp expenses, for which the Applicant may claim additional contribution from the Respondent pursuant to paragraph 10 herein.

10. With respect to any section 7 expenses not specifically referred to in this order:

a. The Respondent shall pay the Applicant 54.4% of any expenses incurred in November and December 2016, and 57.2% of any expenses commencing January 1, 2017.

b. The Applicant shall use all reasonable efforts to locate the Respondent for the purposes of requesting reimbursement for such expenses. However, if she is unable to locate the Respondent, she may nonetheless pursue enforcement of her claims by filing a Statement of Arrears with proof of the expenses with the Family Responsibility Office.

c. The Applicant’s entitlement to contribution from the Respondent is conditional on her either requesting contribution from the Respondent within ten months of incurring the expense if she can locate the Respondent, or submitting a Statement of Arrears with proof of the claimed expenses to the Family Responsibility Office within ten months of incurring the expense.

11. Arrears of support owed by the Respondent to the Applicant shall be recalculated based on the terms of this order, taking into consideration amounts that have been enforced against the Respondent pursuant to the Separation Agreement dated June 14, 2004. These arrears shall be payable forthwith.

12. The Applicant and Respondent shall by July 1 each year produce to each other copies of their Income Tax Returns with all required attachments, Notices of Assessment and Notices of Reassessment for the previous calendar year, and copies of their three most recent pay statements for the current calendar year. The Applicant’s disclosure obligation shall be subject to her ability to locate the Respondent.

13. In the event that it is determined when annual income disclosure is exchanged that the Respondent’s income has increased from the income upon which his child support obligation is based, his monthly child support obligation shall be increased in accordance with the Tables under the Guidelines to correspond with the increased income, retroactively effective January 1 of the current calendar year.

14. The parties’ proportionate-to-income contributions to section 7 expenses relating to the child shall be recalculated when annual income disclosure is exchanged each year, and any necessary adjustments shall apply to all expenses incurred after December 31 of the previous calendar year.

15. The Respondent shall advise the Family Responsibility and the Applicant forthwith of his current address, and of any changes in his address within 7 days of any change.

16. The Respondent shall designate and maintain the child as a beneficiary under any dental, medical and extended health benefits plan available to him through his current or future employment, for so long as the child is eligible for coverage. He shall within 30 days of being served with this order, or within 30 days of becoming eligible for coverage under any future benefits plan, provide the Applicant with a copy of the designation, proof that the designation has been filed with the appropriate benefits provider and documentation from the benefits provider outlining the details of the coverage available for the child.

17. The Respondent shall execute any documentation required to authorize the Applicant to make claims on behalf of the child directly to his benefits provider. If the benefits provider does not allow the Applicant to deal directly with the provider, the Respondent shall forthwith endorse and forward to the Applicant any reimbursement cheques which he receives on account of expenses that the Applicant has incurred for the child.

18. For so long as the child remains eligible for support, the Respondent shall, with respect to any life insurance policies currently available to him through his employment:

a. Keep the policy in force;

b. Not borrow against the policy and ensure that it remains unencumbered;

c. Designate and maintain the Applicant as the sole beneficiary of the proceeds of the policy, in trust for the child, as security for the Respondent’s child support obligations relating to the child; and

d. Execute the required designations and provide the Applicant with proof that the designations have been submitted to the insurance provider within 60 days of being served with this order.

19. The Respondent shall pay the Applicant costs in connection with the application herein in the amount of $2,144.00, payable forthwith by way of certified cheque made out to the Applicant. Of this amount, the sum of $1,929.60 is on account of child support, and as such, is enforceable by the Director, Family Responsibility Office.

20. 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.

21. This Order bears post-judgment interest at the rate of 2% 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.

22. A Support Deduction Order shall issue.

23. This order shall be served on the Respondent by mailing it by regular mail to the Family Responsibility Office, and the Family Responsibility Office mailing it to the Respondent by regular mail to his last known address in the Family Responsibility Office’s records. The Family Responsibility Office shall complete and mail an affidavit of service relating to service of the order to the clerk of the court, who shall file it in the Endorsement volume of the Continuing Record along with the order.

The Honourable Madam Justice Deborah L. Chappel