OTTAWA COURT FILE NO.: FC-05-1803-1

DATE: 2018/03/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Sabah Davis Applicant

– and –

David Davis Respondent

John Guest, Counsel for the Applicant

Self-represented

HEARD: February 22, 2018 at Ottawa

AMENDED REASONS FOR JUDGMENT

The text of the original reasons was corrected on April 6, 2018, at paras 35, 36, 38(6) and (7) and the explanation of the correction is appended.

Justice Engelking

1The Respondent, Mr. Davis brought a Motion to Change the order of Mr. Justice Hackland dated August 30, 2005, in January of 2017. He is seeking an order terminating support for the parties’ two eldest children, Kareem Davis, born October 19, 1996, and Rasheed Davis, born June 16, 1998, as of their 18^th^ birthdays, being October 19, 2014 and June 16, 2016 respectively. In response to his motion to change, the Applicant, Ms. Davis, is seeking an order that child support be terminated for Kareem as of November of 2016 and for Rasheed as of October of 2016. She is also seeking an order for retroactive increases in child support, and an order fixing child support arrears for all three children. Ms. Davis also seeks an increase in prospective child support for the parties’ youngest child, Aliyah Davis, born May 24, 2001, pursuant to the Federal Child Support Guidelines based on Mr. Davis’ current income, which Mr. Davis does not dispute. She also seeks a proportional contribution to section 7 expenses for Aliyah, retroactive and prospective, security for Mr. Davis’ support obligation, and future disclosure of income and adjustment of support.

The Issues

[2]

The Issues

The issues in this case are:

(1) What is the appropriate date of termination of support for Kareem and Rasheed Davis?

(2) Should there be retroactive increases of child support for Kareem, Rasheed and Aliyah Davis, and if so, from what date or dates?

(3) What is the quantum of arrears owed by Mr. Davis to Ms. Davis, if any?

3For the reasons below, I find that the appropriate dates of termination of support for Kareem and Rasheed are November 30, 2016 and October 31, 2016 respectively. I find additionally that there should be an order of increased retroactive child support from January 1, 2013 to December 31, 2016. Finally, I find that the quantum of child support arrears payable by Mr. Davis are fixed at $26,694, though he will receive credit of $4,222 against that amount, for a total of arrears owing at $22,472.

Background Facts

[4]

Background Facts

The parties were married on June 16, 1995 and separated on April 17, 2002. The three above noted children were born of the marriage. The children’s primary residence post-separation was with Ms. Davis. The two eldest children no longer fit the definition of children of the marriage.

5On August 30, 2005, Justice Hackland granted a final order providing that Mr. Davis pay $1,178 per month in support of the children to Ms. Davis “in accordance with the Child Support Guidelines” based on an annual income of $67,480. Justice Hackland’s order did not contain an explicit provision that required Mr. Davis to provide annual disclosure of his income or to update the quantum of support he paid based on changes to his income.

6Mr. Davis continued to pay $1,178 per month until such time as he filed his Motion to Change seeking an order terminating the support for Kareem and Rasheed.

7According to Ms. Davis, Kareem was a special needs child who was diagnosed with being globally handicapped. Kareem dropped out of high school in December of 2016, and subsequently began to live independently. Kareem received a letter from the school board dated December 5, 2016, which stated that he was being withdrawn from school and removed from the roll.

8Rasheed suffered from some mental health issues as a child and was followed by CHEO for an anxiety disorder. He dropped out of high school in November of 2016 and moved to Alberta to work and live independently. Rasheed received a letter from the school board dated November 8, 2016 indicating that he was being withdrawn from school and removed from the roll.

9Aliyah continues to reside with Ms. Davis. She is an excellent student and enjoys playing soccer. Ms. Davis tries to support her interest in this activity. She has paid for Aliyah’s registration in soccer with no contribution from Mr. Davis. Aliyah also went on a school trip to New York with no contribution from Mr. Davis.

10Currently, Ms. Davis is a cake decorator at Walmart and earns $24,344 per year. Mr. Davis is employed by the Public Service Alliance of Canada and also works part-time with FedEx. His income fluctuates slightly from year to year, but averages near $100,000.

11Ms. Davis never sought to change the order of Justice Hackland prior to filing her Response to Mr. Davis’ Motion to Change. She indicates that Mr. Davis was very demeaning and intimidating to her both during the marriage and since separation. She states that it gives her extreme stress to deal with Mr. Davis, and she has health concerns which are exacerbated by stress. She states that her worst period for stress was in the fall of 2011. Ms. Davis suffered a minor stroke in April of 2012. She was unable to remain at her then employer working as a cashier due to the impacts from her stroke and the pace of the work. In May of 2016, Ms. Davis was required to take a three month stress leave from work.

12Mr. Davis remarried in 2009 and he advised Ms. Davis in late 2010 that he was going to pay less child support as he and his new wife were having a child. From February to June of 2011, he paid only $675 per month in support, and in July of 2011, he paid none, all of which caused extreme stress to Ms. Davis, as she depended on the support for the care of the children. In July of 2011, Ms. Davis, who had previously withdrawn the enforcement of the support order from the Family Responsibility Office (under pressure from Mr. Davis), applied to have it reinstated. She states that Mr. Davis harassed her at her then work at Nicastro’s by calling incessantly when she reinstated enforcement by FRO. Mr. Davis has since had two children with his new spouse, Ella born in 2011 and Emma born in 2013.

13Ms. Davis indicates that while she was always curious of what Mr. Davis income was, she did not ask because she feared retaliation from him. She states that Mr. Davis constantly put her down and also threatened to take the children away from her. In 2011, he made a report about her to the Children’s Aid Society of Ottawa. She did not know if he could, in fact, take the children from her, but she feared it. For these reasons, she did not take any steps to change the Hackland J. order. She also indicated that post her 2012 stroke, the state of her health also prevented her from seeking to change the order. She simply could not manage the stress of dealing with Mr. Davis.

14For his part, Mr. Davis denies mistreating Ms. Davis, and states he called the CAS because he had gone in the house and found it to be poorly kept. He states that he was worried about the care the children were receiving. Mr. Davis states that he was not required by the order of Justice Hackland to report his income yearly, and he followed the court order. He states that not once did Ms. Davis inquire about his income or request further support for the children.

15According to his Notices of Assessment, post the order of Justice Hackland the annual income for Mr. Davis was as follows:

• 2006 - $76,877;
• 2007 -$70,957;
• 2008 - $73,464;
• 2009 - $69,747;
• 2010 - $70,957;
• 2011 - $88,101;
• 2012 - $74,619;
• 2013 - $90,269;
• 2014 -$94,402;
• 2015 - $97,696; and,
• 2016 - $101,194.

16Ms. Davis seeks an increase in retroactive support for all three children from 2006 to 2016, or alternatively from 2011 to 2016. Ms. Davis also seeks an order of retroactive s. 7 expenses for Aliyah in that Mr. Davis has not contributed to her soccer registration or her school trip to New York. Mr. Davis seeks to terminate the support for Kareem and Rasheed as of their respective 18^th^ birthdays, and he seeks credit for his overpayment of support for them from their birthdays to the present. He opposes the claim of Ms. Davis for any increase in retroactive support.

Issue #1 - What is the appropriate date of termination of support for Kareem and Rasheed Davis?

[17]

Issue #1 - What is the appropriate date of termination of support for Kareem and Rasheed Davis?

Kareem turned 18 years of age on October 19, 2014, however, he remained enrolled in full-time education until mid-December of 2016, at which time he was withdrawn from school. Rasheed turned 18 on June 16, 2016, but was also enrolled in school fulltime until mid-November of 2016, at which time he was withdrawn.

18Section 3(1) (2) of the Federal Child Support Guidelines provides that the amount of support for children over the age of majority 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 spouse to contribute to the support of the child.

19Although Mr. Davis says that the boys were never committed to school after eighteen and were not attending consistently, I find that they were still engaged in it until November and October of 2016 respectively. As this is the case, and as children are to be encouraged to complete high school, in so far as they are capable of doing so, I find that the appropriate date for the termination of support for Kareem is as of November 30, 2016. I find that the appropriate date for the termination of support for Rasheed is October 31, 2016

Issue #2 - Should there be retroactive increases of child support for Kareem, Rasheed and Aliyah Davis, and if so, from what date or dates?

[20]

Issue #2 - Should there be retroactive increases of child support for Kareem, Rasheed and Aliyah Davis, and if so, from what date or dates?

The party seeking an order of retroactive support has the responsibility to act promptly and seek the appropriate information upon which the request for increased support rests, or to make the request for increased support.

21Justice Bastarche writing for the majority of the court in D.B.S. v. S.R. G. et. al., 2006 SCC 37, stated at paragraph 99 that the court should consider the following four factors before awarding retroactive child support;

(a) Whether there was a reasonable excuse for why support was not sought earlier;

(b) What was the conduct of the payor parent;

(c) What are the circumstances of the child; and,

(d) Is there any hardship occasioned by a retroactive award?

22Bastarche, J. found that the court should strive for “… a holistic view of the matter and decide each case on the basis of its particular factual matrix”.

Reasonable Excuse for Delay

[23]

Reasonable Excuse for Delay

As I have indicated above, Ms. Davis made no request for increased retroactive support prior to Mr. Davis filing his Motion to Change. She states that she had reasonable excuse which was based on the treatment of her by Mr. Davis over the years and her significant health issues resulting mostly from stress. She states that the state of her post stroke health also contributed to the delay. Based on the evidence before me, I find that Ms. Davis had a reasonable excuse for her delay in seeking increased child support from 2012 onwards, but not from 2006. While she may have found it very difficult to deal with Mr. Davis, based on their shared history and how she felt he treated her, she still had an obligation to pursue proper support for her children. Having not done so, I cannot find that retroactive increases to support should be ordered back to 2006.

Blameworthy Conduct

[24]

Blameworthy Conduct

The second factor the court is to consider is the conduct of the payor and whether it is blameworthy or not. This is not a situation where Mr. Davis failed to comply with a court order by not disclosing his annual income to Ms. Davis; essentially, Mr. Davis followed the order of Justice Hackland from 2005 to February of 2011. From February to June of 2011, Mr. Davis unilaterally reduced the support he paid to Ms. Davis by half (notwithstanding that his income had increased by more than $10,000 since 2005), and in July of 2011, he stopped it completely. His actions were for the benefit of himself and his new family; they were detrimental to Kareem, Rasheed and Aliyah. His conduct in this regard was blameworthy. His behaviour was only rectified by Ms. Davis reinstating enforcement of the order with FRO. However, rectified it was, in that FRO continued to collect the ordered $1,178 monthly. Thereafter, he continued to comply with the order.

25While Mr. Davis was not required by court order to disclose changes to his income, and although Ms. Davis never asked, he still never disclosed increases to his income, notwithstanding that it increased significantly after 2006. I am being asked to find that to be blameworthy behaviour. In D.B.S., Justice Bastarche held at paragraph 108 that where there is a previous court order, because it “is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order.” Justice Bastarche went on to say: “However, this presumption may be rebutted where a change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing a revised ability to pay.” The change in circumstances “sufficiently pronounced” for Mr. Davis occurred in about 2013, when his income increased to and thereafter remained above $90,000. I find his failure to advise Ms. Davis of this significant change in his income to be blameworthy.

26Finally, Ms. Davis states that Mr. Davis’ conduct was blameworthy in that he intimidated and belittled her. He affected her self-esteem to the extent that she felt unworthy. He also threatened that he would remove the children from her whenever she raised issues with him. This too is blameworthy behaviour, which in part supports the legitimacy of her excuse for delay.

Circumstances of the Children

[27]

Circumstances of the Children

The third factor to be considered is what the circumstances of the children are. Aliyah continues to be a child entitled to support; she would have benefited and will still benefit from the support she ought to have received. Similarly, although Kareem and Rasheed are currently independent, Ms. Davis states that she assists Kareem and Rasheed lives with a relative in Calgary while he undertakes an apprenticeship. They are not, in the words of D.B.S. at paragraph 111, “currently enjoying a relatively high standard of living” such that they would benefit less from a retroactive award.

Hardship

[28]

Hardship

The final consideration is whether any hardship would be occasioned by Mr. Davis by a retroactive award. He does have two more children for whom he is now responsible. In D.B.S., Bastarche J. found at paragraph 115 that “courts should recognize that hardship considerations in this context are not limited to the payor parent: it is difficult to justify a retroactive award on the basis of a “children first” policy where it would cause hardship for the payor parent’s other children.” Mr. Davis indicates that he has worked two jobs to meet the needs of both of his families, and a retroactive award, particularly for Kareem and Rasheed, would be very difficult for him. The court in D.B.S. also found at paragraph 116 that; “While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case,” and that an award for retroactive support can be crafted in a way that minimizes hardship.

29Taking all of the D.B.S. factors into consideration, and taking a holistic view into this particular factual matrix, I find that it is not possible to “justify a retroactive award” to 2006. There will be an order that Mr. Davis pay child support consistent with the FCSG tables for three children from January of 2013 to October of 2016, for two children for November of 2016 and for one child for December of 2016, based on his annual line 150 incomes.

Issue #3 - What is the quantum of arrears owed by Mr. Davis to Ms. Davis?

[30]

Issue #3 - What is the quantum of arrears owed by Mr. Davis to Ms. Davis?

Mr. Davis’ 2013 income was $90,269. The FCSG table amount for three children was $1,675 per month. Mr. Davis paid $1,178 per month. The arrears for 2013 are $5,964.

31Mr. Davis’ 2014 income was $94,402. The FCSG table amount for three children was $1,739 per month. Mr. Davis paid $1,178 per month. The arrears for 2014 are $6,732.

32Mr. Davis’ 2015 income was $97,896. The FCSG table amount for three children was $1,793 per month. Mr. Davis paid $1,178 per month. The arrears for 2015 are $7,380.

33Mr. Davis’ 2016 income was $101,194. The FCSG table amount for three children was $1,845 per month. The FCSG table amount for two children was $1,416 per month. The FCSG table amount for one child was $888 per month. Mr. Davis paid $1,178 per month. The arrears for January to October are $6,670; the arrears for November are $238. The arrears December are -$290.

34The total arrears owing from January of 2013 to December of 2016 are $26,694.

Prospective Child Support

[35]

Prospective Child Support

Mr. Davis should have been paying prospective child support for one child only, Aliyah, as of January 1, 2017. Between January and November, the support for Aliyah would have been $888 per month. In December, the FCSG tables came into effect, and as of December 1, 2017, Mr. Davis should be paying $920 per month for Aliyah. On July 21, 2017, Master Champagne made a consent Order that commencing July 1, 2017, Mr. Davis would pay support for Aliyah in the amount of $888.00 per month. Mr. Davis will have overpaid support between January and June of 2017 for a total of $1740 ($1,178 - $888 = $290 x 6 = $1740). Mr. Davis will have underpaid support between December of 2017 and March of 2018 for a total underpayment of $128 ($888 - $920 = -$32 x 4 = -$128). Mr. Davis should therefore receive a credit of $1612 ($1740 - $128 = $1612).

Arrears

[36]

Arrears

The outstanding arrears owed by Mr. Davis to Ms. Davis is thus $25,082 ($26,694 - $1612 = $25,082). Mr. Davis will be required to pay $300 per month towards those arrears until such time as they are paid in full. This will leave him paying close to what he has previously been required and always managed to pay, thereby minimizing any undue hardship on him.

37There shall also be an order that Mr. Davis shall maintain life insurance sufficient to secure his support obligation to the children and an order providing for future disclosure of his annual income and adjustment of child support payable.

Order

[38]

Order

For the reasons given above, my order shall be as follows:

Termination of Support

1. Support for Rasheed Davis, born June 16, 1998, is terminated as of November 1, 2016.

2. Support for Kareem Davis, born October 19, 1996, is terminated as of December 1, 2016.

Prospective Child Support

3. Commencing January 1, 2017, and continuing on the 1^st^ day of each month that follows, until November 31, 2017, the Respondent shall pay child support to the Applicant for Aliyah Davis born May 25, 2001, in the amount of $888 per month, in accordance with the Tables under the Child Support Guidelines based on the Respondent’s estimated 2017 gross annual income of $101,195.

4. Commencing December 1, 2017, and continuing on the 1^st^ day of each month that follows, the Respondent shall pay child support to the Applicant for Aliyah Davis born May 25, 2001, in the amount of $920 per month, in accordance with the Tables under the Child Support Guidelines based on the Respondent’s estimated 2017 gross annual income of $101,195.

Child Support Arrears

5. Commencing March 1, 2018, and continuing on the 1^st^ day of each month that follows, the Respondent shall pay the Applicant $300.00 for the Table amount of child support arrears which are fixed at $26,694.00 as of December 31, 2016, for the children Kareem Davis, born October 19, 1996, Rasheed Davis, born June 16, 1998, and Aliyah Davis born May 25, 2001.

6. The Respondent shall be credited with over payments of support from January 1, 2017 to March 31, 2018 in the amount of $1612.00.

7. The total amount of outstanding arrears as of the date of this order are $25,082.00

Child Support Arrears: Special and Extraordinary Expenses

8. The Respondent shall pay the Applicant $748.00 for special and extraordinary expense arrears for the child, Aliyah Davis, born May 25, 2001, for her soccer registration and New York school trip, on arrears which shall be fixed at $748.00.

Special and Extraordinary Expenses

9. Commencing January 1, 2017, the Respondent shall pay 80.6% of the special or extraordinary expenses under section 7 of the Child Support Guidelines to the Applicant for special or extraordinary expenses for which the Applicant provides him with a receipt.

10. The Respondent shall continue to maintain Aliyah on his health and dental benefits and shall provide the Applicant with a copy of his benefits card and booklet so that she may make claims directly to the Respondent’s insurance company.

11. If the Respondent has not provided the Applicant with a booklet card, he shall reimburse the Applicant for any special and extraordinary expenses incurred by her within 14 days of receiving a receipt for the expense, whether or not he has been reimbursed.

Security for Support Obligation

12. The Respondent shall obtain life insurance at his own expense, naming the Applicant as the irrevocable beneficiary of the policy, which shall be in an amount of at least $40,000, provide proof thereof and continue paying until Table support is no longer payable.

13. If the Respondent dies without this insurance in effect contrary, the Respondent's obligation to pay support shall survive his death and shall be a first charge on the Respondent's estate.

Child Support: Disclosure and Adjustment

14. On or before June 1st of each year, both parties shall, in writing, provide the following information to the other:

a. The documents required by the Federal Child Support Guidelines which have not previously been provided, which includes personal Income Tax Returns, related tax slips and Notices of Assessment and/or Reassessment, as applicable;

b. Current information about the children's special or extraordinary expenses; and,

c. Any other information needed to review child support.

15. On or before July 1st of each year, the parties shall adjust the child support payable, including the Table Amount of support under the Child Support Guidelines and adjust the proportion each is paying towards the child’s special or extraordinary expenses.

Other

16. Unless the support order is withdrawn from the 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. A support deduction order will be issued.

17. The Respondent shall provide to the other party and the Director of the Family Responsibility Office notification of any change in address or employment including full particulars about the change within ten (10) days of the change taking place.

18. This order bears interest at the post-judgement interest rate set out in the Courts of Justice Act of ____% per year effective from the date of this Order. A payment in default bears interest only from the date of default.

Costs

[39]

Costs

Failing agreement by the parties by April 1, 2018 as to the liability for costs of this Motion to Change, written submissions not exceeding three pages together with a bill of costs and offers to settle can be made to me at intervals of 10 days and I will make an order.

Madam Justice Tracy Engelking

Released: March 7, 2018

APPENDIX

Appendix

The following modification was made to paragraph [35]:

35Mr. Davis should have been paying prospective child support for one child only, Aliyah, as of January 1, 2017. Between January and November, the support for Aliyah would have been $888 per month. In December, the FCSG tables came into effect, and as of December 1, 2017, Mr. Davis should be paying $920 per month for Aliyah. On July 21, 2017, Master Champagne made a consent Order that commencing July 1, 2017, Mr. Davis would pay support for Aliyah in the amount of $888.00 per month. Mr. Davis will have overpaid support between January and June of 2017 for a total of $1740 ($1,178 - $888 = $290 x 6 = $1740). Mr. Davis will have underpaid support between December of 2017 and March of 2018 for a total underpayment of $128 ($888 - $920 = -$32 x 4 = -$128). Mr. Davis should therefore receive a credit of $1612 ($1740 - $128 = $1612).

The following modification was made to paragraph [36]:

36The outstanding arrears owed by Mr. Davis to Ms. Davis is thus $25,082 ($26,694 - $1612 = $25,082). Mr. Davis will be required to pay $300 per month towards those arrears until such time as they are paid in full. This will leave him paying close to what he has previously been required and always managed to pay, thereby minimizing any undue hardship on him.

The following modification was made to paragraph [38(6) and (7)]:

6. The Respondent shall be credited with over payments of support from January 1, 2017 to March 31, 2018 in the amount of $1612.00.

7. The total amount of outstanding arrears as of the date of this order are $25,082.00

OTTAWA COURT FILE NO.: FC-05-1803-1

DATE: 2018/03/07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Sabah Davis Applicant

– and –

David Davis Respondent

AMENDED REASONS FOR JUDGMENT

ENGELKING J.