Court File and Parties

COURT FILE NO.: 370/12 DATE: 2019-10-01 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: David John Goddard, Applicant AND: Cheri-Leigh Fran Oberding, Respondent

BEFORE: The Honourable Madam Justice L. Bale

COUNSEL: Applicant (in absentia) Self-Represented Respondent

HEARD: September 23, 2019

ENDORSEMENT

Overview

[1] The following is the Court’s ruling on the uncontested Motion to Change the Final Order of the Honourable Mr. Justice D. Steinberg dated May 28, 2012 by the Respondent mother in these proceedings.

[2] On June 14, 2019, the Respondent mother commenced a Motion to Change the Final Order of Steinberg J. dated May 28, 2012 as it pertains to child support for the children Abbigayle Leigh Goddard, born May 25, 2000, and Joshua David Goddard, born October 1, 2013.

[3] The Respondent mother’s requested changes to the Final Order were noted as “TBD” in the motion materials, as the Respondent is largely unaware of the Applicant father’s income. The Respondent pleaded that she was requesting a variation of child support retroactive to 2012.

[4] The Respondent mother’s motion was served personally on the Applicant father on July 15, 2019.

[5] The Applicant father failed to respond to the Respondent mother’s Motion to Change. He did not file any responding materials and did not attend the administrative First Appearance court date on July 25, 2019.

[6] The Respondent mother filed a basket motion requesting a Final Order varying the payor father’s child support obligation, retroactive to 2012. The matter came to my attention, in chambers, on September 6, 2019.

[7] At my request, an oral hearing was scheduled for September 23, 2019. Notice of this hearing was provided to both parties via regular mail to their respective residences by the court staff. The notice included a copy of my endorsement which ordered as follows:

a. Both parties shall attend before me on September 23, 2019 at 10:00 a.m. at the Hamilton Family Court;

b. Both parties shall produce their 2016, 2017, and 2018 Income Tax Returns and Notices of Assessment to the court on that date;

c. In the event that the Applicant father does not attend on that date with the requisite financial disclosure, this court may:

i. Impute an income to the Applicant of no less than $80,000.00 per year;

ii. Order a retroactive payment of child support owing to the Respondent mother reflecting an underpayment of child support effective January 1, 2013;

d. A copy of this endorsement and Order (as issued forthwith by the court staff) shall be mailed to each party as per the following last known addresses contained within the Motion to Change Volume (CR:2).

[8] On September 23, 2019 the Respondent mother attended before me as ordered. The Applicant father did not attend. A viva voce hearing proceeded in his absence in accordance with the Family Law Rules.

Facts

[9] I rely upon the following facts, supplied to me by the Respondent mother both as contained within her sworn affidavit materials and as supplemented by her viva voce evidence provided on September 23, 2019.

[10] The parties were married on April 5, 2003. They separated in September 2008 and were divorced on July 27, 2018.

[11] There are two children of the marriage, namely Abbigayle Goddard, born May 25, 2000, and Joshua Goddard, born October 1, 2003.

[12] Both children have resided continuously with the Respondent mother since separation. The circumstances of the children are as follows:

a. The child Abbigayle is currently 19 years of age. She commenced a full-time program of post-secondary studies through Mohawk College/McMaster in September 20018. It is a four year program of study.

b. The child Joshua is currently 15 years of age. He is in grade 11 at Henderson High School.

[13] The governing court order in this matter is the Final Order of Steinberg J. dated May 28, 2012. The Order has never been varied.

[14] The Applicant father has been paying child support at a rate of $524.00 per month since January 2012. This child support amount was based upon the Applicant father earning a gross annual income of $36,207.57 in 2011. At that time the Applicant father was working part time at the City of Hamilton.

[15] The Respondent mother advises that her income as a hairdresser has varied from $28,000.00 to $32,000.00 from 2012 to present. Her income has never exceeded $32,000.00 per year.

[16] The Steinberg J. Order further provides, inter alia, that:

a. The parties contribute to the s. 7 expenses of the children in proportion to their incomes (Applicant 56%, and Respondent 44%);

b. The payor (and recipient, if applicable) must provide updated income disclosure to the other party each year in accordance with s. 24.1 of the Child Support Guidelines;

c. Commencing January 1, 2013, and each year thereafter, child support would be adjusted retroactively based on the incomes of the parties.

[17] It is the Respondent mother’s belief that the Applicant father commenced full time employment with the City of Hamilton in 2013.

[18] The father has not produced his income disclosure on an annual basis, in accordance with the Order of Steinberg J. The mother testified that she commenced making informal verbal requests for informal income disclosure in 2013, to no avail.

[19] The Applicant father refused to contribute to the children’s s. 7 expenses, as repeatedly requested by the mother, since the Order of Steinberg J. She cites such examples as football registration for Joshua and school trips for both children as items to with the Respondent father refused to contribute. She would like to enroll Joshua in football, as is his interest, but she cannot afford to do so on her own. The total cost of football per year is estimated at $1,200.00 per year. At present Joshua is not enrolled.

[20] The child Abbigayle’s tuition is approximately $4,500.00 per semester. This is being financed by way of significant student loans and Abbigayle’s own employment. Additionally, the Respondent mother assists Abbigayle by contributing to the cost of her car insurance of $405.00 per month, and her books at a cost of $1,200.00-$1,400.00 per year. The total annual cost of these expenses is approximately $15,000.00 per year. As stated above, Abbigayle continues to reside in the mother’s home and commutes to school on a daily basis.

[21] The only child support the Applicant father has paid since the Order of Steinberg J. has been the monthly amount of $524.00 per month, as Ordered and as enforced through the Family Responsibility Office, which payments are in good standing.

[22] The Respondent mother advises that in the summer of 2018 the Applicant father showed her a document which purported to show the Applicant’s income as $52,000.00 or $56,000.00. She is unaware as to the nature of the document or the year to which this income was purported to correspond.

[23] The Respondent mother testified that, whenever she requested income information from the Applicant, or a review of the child support amount, the Applicant would threaten to quit his job or not see the children or not help with driving of the children to their activities. As a single mother, the Respondent needed this support.

[24] The Applicant father lives alone and has no other dependants.

[25] The mother was forced to enter into a consumer proposal in 2018 to manage her debt.

[26] The mother advised the court that the Applicant father informed the child Abbigayle that he received a copy of this Court’s endorsement of September 6, 2019. The Respondent received her copy the following day.

Analysis

[27] The governing legislation with respect to the Respondent mother’s motion to change child support is found within s. 17 of the Divorce Act, the relevant terms of which are as follows (Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as am.):

Order for variation, rescission or suspension

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

Terms and conditions

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought.

Factors for child support order

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

Guidelines apply

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

Reasons

(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

Retroactive Child Support:

[28] The Supreme Court of Canada has provided the following guidance in relation to retroactive awards of child support where there is already an existing court order in place for same (D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 68):

A payor parent always has the obligation to pay – and the dependant child always has the right to receive – child support in an amount that is commensurate to his/her income. This obligation is independent of any court order that may have been previously awarded. Accordingly, even where the payor parent has made payments consistent with an existing court order, (s)he would not have been fulfilling his/her obligation to his/her children if those payments did not increase when they should have, according to the applicable law at the time. Thus, the support obligation of a payor parent, while presumed to be the amount ordered by a court, will not necessarily be frozen to the amount ordered by a court. It is the responsibility of both parents to ensure that the payor parent fulfills his/her actual obligation, tailored to the circumstances at the relevant time. Where they fail in this obligation, a court may order an award that recognizes and corrects this failure. Such an award is in no way arbitrary for the payor parent. To the contrary, it serves to enforce an obligation that should have been fulfilled already.

[29] The factors that a court should consider in awarding a retroactive child support award are as follows: (D.B.S. at paras. 100-116):

a. Reasonable excuse for why support was not sought earlier;

b. Conduct of the payor parent;

c. Circumstances of the child; and

d. Hardship occasioned by a retroactive award.

[30] In considering these factors in the context of the case before me I find as follows:

a. The Respondent mother’s excuse for not seeking a variation of support at an earlier date is reasonable. She feared that the father would cease all payment of support by quitting his employment, and that he would terminate his relationship with the children, as threatened. It was reasonable for the mother to avoid litigation, which in her opinion would harm the children financially and emotionally;

b. The father’s conduct is blameworthy. He has disobeyed the Order of Steinberg J. by failing to contribute to any s. 7 expenses on behalf of the children, and by failing to produce annual income disclosure to the Respondent mother, and by failing to review/adjust the support payable on an annual basis as Ordered. The father did not disclose his increase in income to the mother in 2013, when he achieved full-time employment status with the City of Hamilton. Although I note that the mother did not disclose her income information to the father, her failure to do so is mitigated somewhat by the following: (i) her income is only relevant to the issue of proportionate contribute to s. 7 expenses, for which no payments were being made by the father; and (ii) the mother’s income has remained relatively static since 2012. The mother has not sought retroactive contribution to the children’s s. 7 expenses and therefore her historic income information is not necessary for this Court’s analysis of the issues;

c. The circumstances of both children require a retroactive amount of child support. The child Abbigayle has been prejudiced by reason of large student loans, and the child Joshua has been prejudiced by reason of insufficient funds to permit him to participate in the extracurricular activities he enjoys. Both children have no doubt been impacted by the mother’s modest level of income and inability to meet her debts, as evidenced by her 2018 consumer proposal;

d. I have no evidence before me of any hardship that would be occasioned upon the Applicant father by a retroactive award because he has chosen not to participate in these proceedings. My endorsement of September 6, 2019 clearly advised the father that this Court would specifically be contemplating a retroactive award of child support based upon an imputed level of income to him. He has chosen not to appear to lead any evidence to suggest that he would be prejudiced by such an award.

[31] I am satisfied that on the facts of this case a retroactive adjustment of child support is appropriate and necessary to correct an historic underpayment of child support.

[32] I turn next to the issue of the date of retroactivity. In D.B.S. the Court summarized the following principles with respect to this issue (para. 125):

Payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.

[33] I find that the Applicant father has engaged in blameworthy conduct. He cannot reasonably be found to have believed that he was meeting his children’s support entitlement when he was paying support based on a part-time income while he was in fact employed on a full-time basis. The Applicant did not disclose this material change in circumstance, nor any subsequent increase in his income. He cannot be permitted to profit from this blameworthy conduct.

[34] The Respondent mother testified that it was her belief that the Applicant secured full-time employment with the City of Hamilton in 2013. I accept that assertion as fact and find that it constitutes a material change in circumstance that warranted a variation of child support at that time.

[35] I further accept that the Respondent mother attempted to raise the issue with the Applicant father in 2013 and almost annually thereafter without success. I accept that due to threat of financial and emotional harm to the children she chose not to pursue litigation until 2019. In my view, the father had effective notice of the mother’s desire to review his support obligations to the children long ago. The mother’s delay in pursuing formal litigation is reasonable in the context of her consideration of the best interests of the children and her financial circumstances.

[36] The Order of Steinberg J., at paragraph 11, specifically contemplated that support would be adjusted annually to reflect changes in the parties’ incomes, commencing January 1, 2013. The father had notice of this obligation.

[37] Further, my endorsement of September 6, 2019 put the Applicant on notice that this Court would be considering a retroactive award of child support back to January 1, 2013 at an increased income level. He was ordered to attend before me on September 23, 2019, with financial disclosure in hand, and chose to disregard the Order.

[38] On the basis of the above, I find that the appropriate date upon which to vary the Applicant father’s child support obligation is January 1, 2013. The evidence overwhelmingly supports this position.

Quantum of Retroactive Award and Analysis of Applicant’s Income

[39] On the facts of this case I find that the payment of Table child support, in accordance with the Federal Child Support Guidelines, is fitting of the circumstances; (1) it is presumptive under s. 17(6.1) of the Divorce Act; (2) it was the understanding of the parties at the time of the original order of Steinberg J. in 2012; and (3) there is no evidence of any undue hardship or on the part of the Applicant, or any other reason on the record before me which would lead me to deviate from the amounts prescribed by the applicable tables under the Guidelines.

[40] The difficulty which arises in this case, which is too often the case in family law proceedings, is that the Applicant father has completely ignored the process, thereby failing to produce his income information for the relevant time period. As such, an analysis of the appropriate level of income to impute to the Applicant father is necessary.

[41] A payor’s income is typically determined by reference to his or her Line 150 “Total income” in the T1 General form issued by the Canada Revenue Agency in child support proceedings: Federal Child Support Guidelines, SOR/97-175, as am., at s. 16. Where a payor has failed to provide income information when under a legal obligation to do so the Court may impute such amount of income to the party as it considers appropriate in the circumstances: Federal Child Support Guidelines, SOR/97-175, as am., at s. 19(f).

[42] Income may be imputed to a party for the purposes of determining support provided that a rational and solid evidentiary foundation has been laid: Drygala v. Pauli, 2002 CanLII 41868 (ONCA), Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17.

[43] In this case the Respondent mother has had to speculate to some degree as to the Applicant father’s true income. At some point in time she believes his annual income was in the range of $52,000.00 to $56,000.00 based upon a document shown to her. This is the best evidence available to the court, however it is unclear as to whether this figure is reflective of net or gross income, or the period of time to which this income is purported to be applicable. A negative inference is drawn against the Applicant father, as a result of his failure to participate and his failure to provide the financial disclosure prescribed by the Federal Child Support Guidelines and the Family Law Rules.

[44] I believe it is reasonable in the circumstances to estimate that the Respondent’s gross annual income was approximately $55,000.00 per year for the years 2013, 2014, and 2015. For purposes of retroactive child support calculations, I will impute an income to the Applicant father of $55,000.00 per year for those three years. I reaching this conclusion have considered the Applicant father’s part-time income of $36,207.57 in 2011, his increase to full time hours in 2013, and the impact of inflation/annual wage increases generally.

[45] The corresponding Table child support payable for two children at this level of income, according to the December 31, 2011 table amounts, is $817.00 per month. The Applicant shall receive credit of his payments of $524.00 per month, as made during this time period. The net difference of $293.00 per month, over the course of 36 months amounts to a net underpayment of child support in the sum of $10,548.00 for the time period January 1, 2013 to December 31, 2015.

[46] It is this Court’s view that as the Applicant’s seniority with his employer increased, so too did his income. There is no evidence before the Court as to the Applicant’s job title. He has not disclosed this information. To the Respondent’s knowledge the Applicant is employed in either maintenance, or HSR, or both with the City of Hamilton. It is unknown whether he holds a supervisory position. Again, adverse inferences against the Applicant have been drawn due to his non-disclosure. As such, it is reasonable in the circumstances to estimate that the Respondent’s gross annual income was approximately $80,000.00 for the years 2016, 2017, 2018, and 2019 to present. The Applicant was given specific notice as to the potential imputation of income at this level both by the Respondent’s Motion to Change materials, and my endorsement of September 6, 2019. He has not presented any opposition to this figure, and as such, for purposes of retroactive child support calculations I will impute an income to the Applicant father of $80,000.00 per year for these years.

[47] The corresponding Table child support payable for two children at this level income, according to the December 31, 2011 Table, is $1,172.00 per month. The corresponding Table child support payable for two children at this level income, according to the November 22, 2017 table amounts, is $1,211.00 per month. The Applicant shall receive credit of his payments of $524.00 per month, as made during this time period. The net difference of $648.00 per month for a period of 23 months, and the net difference of $687.00 per month for a period of 22 months amounts to a net underpayment of child support in the sum of $31,229.00 for the time period January 1, 2016 to September 30, 2019.

[48] It is therefore the conclusion of this Court that the Applicant father owes the Respondent mother a retroactive underpayment of child support for the period of January 1, 2013 to September 30, 2019 fixed in the sum of $41,777.00.

Prospective Child Support

[49] It is reasonable to expect that the Applicant’s salary with the City of Hamilton has continued to rise. In the absence of proper financial disclosure, and in consideration of my previous findings as to the historic income level of the Applicant, I find it reasonable to impute a gross annual income of $85,000.00 per year to the Applicant on a current and prospective basis. The applicable Table amount for two children based upon this income is $1,284.00 per month. Table support from the Applicant to the Respondent, payable in the amount of $1,284.00 per month, will commence on October 1, 2019 and monthly thereafter.

S. 7 Expenses

[50] With respect to s. 7 expenses on behalf of the children, the Federal Child Support Guidelines provide as follows:

Special or extraordinary expenses

7 (1) In a child support order the court may, on either spouse’s request, 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 spouses and those of the child and to the family’s spending pattern prior to the separation:

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

[51] As stated above, the Respondent mother does not seek retroactive contribution to s. 7 expenses from the father. However, as a result of the material change in circumstance in the Applicant father’s income it is appropriate to adjust the parties’ respective obligation to contribute to s. 7 expenses on a go-forward basis in proportion to their incomes.

[52] This Court has found that the current (imputed) gross annual income of the Applicant father is $85,000.00 per year. The gross annual income of the Respondent mother is approximately $30,000.00 per year. Therefore, commencing October 1, 2019 the Applicant’s proportionate share of s. 7 expenses is 74% and the Respondent mother’s proportionate share is 26%.

[53] The child Abbigayle’s post-secondary expenses total approximately $15,000.00 per year, which includes her tuition, car insurance, and books. Abbigayle has admirably shouldered much of the cost of this education herself, by way of earnings and student loans to date. This is unfair to Abbigayle who has a right to some level of financial support from her parents while she remains enrolled in full time studies. The parties are of somewhat limited means to assist, however both have an obligation to contribute to this expense. I find it appropriate, based upon the circumstances of this family, to order that the parties share proportionately in 1/3 of the total cost of these expenses. Abbigayle’s contribution to the cost of same will amount to approximately 2/3 of the total. That is, commencing October 1, 2019, the parties shall contribute the total sum of $5,000.00 annually to Abbigayle’s expenses as follows:

a. The Applicant father shall be responsible for 74% of 1/3 of the total estimated cost per year, amounting to $3,700.00 per year;

b. The Respondent mother shall be responsible for 26% of 1/3 of the total estimated cost per year, amounting to $1,300.00 per year.

[54] The evidence before me is that the child Joshua would like to be enrolled in football as he has been in the past. The total estimated cost is $1,200.00 per year, including both registration and equipment. I find that this expense exceeds the amount that the Respondent mother can reasonably cover, taking into consideration her income and the table child support payable. It is an expense that should be shared in proportion to each party’s respective income. Joshua should not be deprived of the opportunity to participate in this activity as a result of his father’s refusal to pay. As such, commencing October 1, 2019, the parties shall contribute the total sum of $1,200.00 annually to Joshua’s football expense, or if preferable, another extracurricular activity substituted for same in the discretion of the Respondent mother in consultation with Joshua, as follows:

a. The Applicant father shall be responsible for 74% of the total cost of football registration and equipment (or substitute extracurricular activity), amounting to $888.00 per year;

b. The Respondent mother shall be responsible for 26% of the total cost of football registration and equipment (or substitute extracurricular activity thereto), amounting to $312.00 per year.

[55] The Father’s proportionate share of both children’s s. 7 expenses, as outlined above, shall be enforceable as a fixed monthly contribution towards the children’s s. 7 expenses to the Respondent mother, fixed in the sum of $382.33 per month. The Respondent mother has demonstrated that she can be trusted to apply these amounts to the s. 7 expenses of the children appropriately.

Conclusion

[56] On the basis of the above, there shall be a Final Order varying paragraphs 5, 6, and 7 of the Final Order of Steinberg J. dated May 28, 2012 as follows:

1. Commencing October 1, 2019, the Applicant father shall pay monthly Table child support to the Respondent mother on behalf of the children of the marriage, namely Abbigayle Leigh Goddard, born May 25, 2000, and Joshua David Goddard, born October 1, 2003, in the sum of $1,284.00 per month, based upon an imputed gross annual income of $85,000.00 per year, in accordance with the Federal Child Support Guidelines;

2. Commencing October 1, 2019, the Applicant father shall pay to the Respondent mother his proportionate 74% share of the children’s s. 7 expenses, on behalf of the children of the marriage, fixed in the sum of $382.33 per month;

3. Retroactive arrears of child support owing from the Applicant father to the Respondent mother for the period of January 1, 2013 to September 30, 2019 are fixed in the sum of $41,777.00;

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

5. All other terms of the Final Order of Steinberg J. dated May 28, 2012 shall remain in full force and effect;

6. There shall be no costs payable between the parties in relation to this matter.

Bale J.

Date: October 1, 2019