Gough v. Blanchard, 2017 ONSC 523

CITATION: Gough v. Blanchard, 2017 ONSC 523

COURT FILE NO.: FS-15-20219

DATE: 20170120

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Shannon Gough

Applicant

– and –

James Blanchard

Respondent

Julia Tremain, for the Applicant

Lauren Israel, for the Respondent

HEARD: January 19, 2017

Harvison Young J.

Overview

1The motion before the court today is a r. 1 “focused hearing” to determine whether the Applicant Mother, Shannon Gough, can seek retroactive s. 7 expenses from the Respondent Father, James Blanchard, dating back to 2002. The s. 7 relief was not pleaded in the motion to vary that was before the court.

2That 2002 motion and cross-motion resulted in an order by Mackenzie J. (dated September 9, 2002) for the payment of $635 per month of child support based on an imputed income of $45,000 annually for two children to be enforced through FRO. No order for s. 7 expenses was made.

3In 2016, the RF brought a motion to vary seeking to terminate child support for both children and to terminate arrears. The AM brought a cross-motion seeking retroactive child support as well as s. 7 expenses going back to 2002. This r. 1 motion does not address the merits of the respective motions to change, but only whether the AM is entitled to seek s. 7 expenses at all, in the circumstances.

Background

4The children in question are Brandon, dob June 25, 1985 and Kailan, dob November 29, 1987 (the “children”). They are now 31 and 29 respectively.

5The parties’ relationship was brief. They began to live together in 1985, married in 1988 and separated in 1989. The RH has not seen the children since 1989. The AM claims that this is because he showed no interest and left her to raise the children entirely on her own. The RH claims that this is because the AM did not want him involved and obtained a “no access” order.

6In 2002, the RF brought a motion to vary the original order made by Herold J. in 1994. The AM brought a cross-motion for child support. Although she mentioned s. 7 expenses in her affidavit, she did not plead s. 7 expenses.

The Applicable LAM

7Counsel agree that this matter is governed by D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. D.B.S. remains the most authoritative case with respect to retroactive child support. It is clear that it also applies to s. 7 expenses: Diaz v. Pena, 2016 ONCJ 88. After hearing counsel’s submissions and considering the lAM in relation to the evidence before this court, I conclude that this is not an appropriate case in which the payment of any retroactive child support to the RW should be ordered.

8The factors to be applied by a court considering retroactive support were enunciated in Bastarache J.’s majority decision in D.B.S. The purpose of the D.B.S. test is to introduce an umbrella test of fairness which attempts to balance fairness to the children and certainty to the payor: see Petersen v. Petersen, 2007 BCSC 497.

9The factors include:

a. Is there a reasonable excuse for why an increase was not sought earlier?

b. Has the conduct of the payor parent been blameworthy?

c. Do the circumstances of the child support the making of a retroactive order?

d. Would a retroactive order cause hardship to the payor parent?

The Submissions of the Parties

10The AM argues that the court should exercise its discretion to permit her to claim retroactive s. 7 expenses in this case. On behalf of the AM, Ms. Tremain argues that after the 2002 order, she did not know how to contact the RF and that he was hiding and that despite making efforts, she was not able to find him. She submits that the RF’s conduct in failing to pay the $3,500 cost order imposed by MacKenzie J. and to transfer the El Camino to her as ordered constitutes blameworthy conduct along with the fact that he has accumulated arrears with FRO. The children, though now adults, have student loans and have suffered setbacks along the way that have, she submits, rendered them “children of the marriage” longer than they might otherwise have been.

11On the other hand, the RF submits that this is a clear case in which the court should decline to exercise its jurisdiction as the AM asks.

12On behalf of the RF, Ms. Israel emphasizes that the Mackenzie order before the court is a child support order which was entirely silent on s. 7 expenses. Moreover, the AM did not plead s. 7 before Mackenzie J. in 2002 (although she referred to s. 7 expenses in her affidavit). I note that at that time, the children were 17 and 15, respectively. The s. 7 relief she now seeks, therefore, is not a variation because there is nothing to vary. Rather, it is a new claim and one which this court has no jurisdiction to make because these children were adults (31 and 29) when the application to vary was commenced in 2016. As Ms. Israel colourfully put the point, “[Y]ou can’t ask the court to vary apples and oranges when only apples were granted”.

13In applying the D.B.S. factors, I find that none of them weigh in favor of the AM.

14First, I do not find that the AM had a reasonable excuse for not seeking s. 7 expenses earlier. She could easily have pled for s. 7 relief in her cross-motion in 2002. She did not. While she claims to have tried to locate the RF to make this claim, I do not accept her evidence on this point. She gives no specifics as to who she contacted or when she did so. In addition, the RF and his immediate and extended family have remained in Ontario in the same area and in many cases with the same addresses, phone numbers and email addresses that they have had for many years. The AM had moved to Nova Scotia in 2006. Most significantly, she did not contact FRO because, she states, this never occurred to her. I do not accept this because the child support was always enforced by FRO and she certainly knew how to contact FRO. Ms. Gough also swears at one point in her affidavit that “once he brought a motion to terminate MacKenzie’s 2002 Order, I put him on notice that I would be making a claim for s. 7 expenses incurred on behalf of the children.” By that time, the children were 31 and 29 and had not, it seems, been in fulltime studies for a number of years.

15Second, I do not find that the RF’s conduct was “blameworthy” for the purposes of D.B.S. The RF paid the child support ordered by Mackenzie J. from 2002 until 2007. He also paid significant additional amounts toward the arrears that had accrued between 1990-1994, owing at the time of the order. In 2007, he began to pay less, and less consistently. The amounts and regularity of payments continued to decrease since that time. In 2007, the oldest child, Brendan, turned 22, and it seems that he had ceased to be a fulltime student by 2007, at the latest. Kailan turned 20 in 2007. It is a reasonable inference that the RF’s reduction in payments in 2007 was a sort of “self-help” on the basis that the children were adults by that time. While he clearly should have brought a motion to vary rather than unilaterally change his payments, it was not morally blameworthy. This was not a payor who hid, changed his name or took any steps to avoid being found. The parties were never in touch, but Mr. Blanchard sets out numerous routes that would quickly have led to him. And he knew that FRO knew where he was.

16Moving to the third D.B.S. consideration, I do not see that the “circumstances [of the children] justify the making of an order”. While I understand that they worked when they were studying and that they now have student loans, this is far from a case where the s. 7 expenses sought will make a difference to whether they attend university or not. Those decisions are now history. The financial challenges they face now, they face as adults.

17Finally, I accept that retroactive s. 7 expenses would cause hardship for Mr. Blanchard in the D.B.S. sense. Given that:

(i) s. 7 expenses were neither pled nor awarded in the 2002 proceeding and resulting order;

(ii) some 15 years have now passed with no notice or claim made by Ms. Gough on this point; and

(iii) the children are now on the verge of their 30s,

he should be entitled to rely on the certainty of the 2002 final order, and it is not in the interests of fairness that a court now order s. 7 expenses.

18Given my conclusion on the first step of the test for retroactive s. 7 expenses, it is not necessary to proceed to the second step to consider the quantum. For these reasons, Ms. Gough may not seek s. 7 expenses.

19Costs are payable by the AM to the RF in the amount of $5,000.

20On consent, a settlement conference is scheduled for Monday April 3, 2017 at 10.00 am to address the other issues arising from the motion to change.

Harvison Young J.