Court File and Parties

COURT FILE NO.: F282-16 DATE: 2020-01-27 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Paula Vandersluis, Applicant AND: Travis Perrin, Respondent

BEFORE: Heeney J.

COUNSEL: Norman Aitken, for the Applicant The Respondent, self-represented

HEARD: January 20, 2020 at London

Endorsement

[1] There is one outstanding issue to be resolved in this application: whether the respondent owes retroactive child support for the child Bryce, born April 29, 2010, for the period from September 1, 2013, when the parties separated, to April 25, 2017, when an interim child support order was made by George J.

[2] The parties agree that a final order with regard to the other issues should go in the following terms:

• The parties will have joint custody of the child;
• The child’s primary residence will be with the applicant;
• The respondent will have access to the child on alternate weekends from Friday at 5:30 p.m. until Sunday at 9:30 p.m., plus additional access as agreed;
• The respondent will pay child support in the amount of $540 per month, commencing February 1, 2020. This is the table amount of support for one child based on the respondent’s annual income of $60,257.

[3] To that consent final order, I add the following additional terms:

• The respondent will pay his proportionate share of s. 7 expenses;
• So long as support is to be paid, the parties shall provide each other with the income disclosure required under s. 24.1 of the Child Support Guidelines, by May 1 in each year, commencing May 1, 2020.

[4] It should be noted that the support provisions are a continuation of the interim order made by Tobin J. on May 22, 2019. The joint custody order is a continuation of the interim order made by George J. on April 25, 2017, but the access terms have, on consent, been reduced. The respondent has not been exercising the overnight access he was entitled to receive under the interim order on the Sunday night of each access weekend, and on the Wednesday night of each mid-week access visit, due to his work commitments and the need to work long hours to fulfill his support obligation. He quite reasonably concluded that it was not in the best interests of the child to set up expectations for access visits that were unlikely to happen, and therefore agreed to a final order that conforms with the present reality of access visits.

[5] The parties began cohabiting in May, 2008, and separated on September 1, 2013. The respondent agrees that he paid no child support from the date of separation until the fall of 2016, several months after the applicant commenced these proceedings on March 8, 2016. He made three payments during 2016 at the suggestion of his then counsel in the amount of $397, totalling $1,137.

[6] He made four more payments in the same monthly amount of $397 during the first four months of 2017, totalling $1,588. On April 25, 2017 the interim support order of George J. was made. All support accruals and payments made on that order and the successor interim support order are recorded in the printout from FRO dated July 3, 2019, up to the date of the statement. It has been filed as Ex. #3. That statement shows that the respondent has been in a state of arrears in all but seven months since the beginning of the order. The arrears have generally been under $1,000 at any given time, but have gotten as high as $1,684. The respondent testified that he is currently up to date on his child support, although the applicant states that she has yet to receive the payment for January 2020. None of this recent support history is particularly relevant, though, since I am only being asked to deal with the issue of arrears between the dates of September 1, 2013 and the end of April, 2017.

[7] The respondent also borrowed money in June 2014 to purchase a Hyundai motor vehicle for the applicant, so that she would have reliable transportation for the child. According to his records, which the applicant accepts, he paid a total of $6,980 in that regard from the time he purchased it until he demanded the return of the vehicle in March of 2016. In his testimony, the respondent said that this money was intended to be one-half of the daycare expenses, as opposed to a contribution towards regular child support.

[8] The applicant in her testimony was firmly of the view that the payments on the car were a form of child support, and that she alone paid for daycare. In the arrears chart filed by the applicant at the outset of this trial, she gave the respondent a credit for this amount toward the child support owing. However, based on the admission of the respondent that the car payments were intended as a contribution towards daycare costs, the applicant amended her claim to reverse the credit of $6,980 that she had agreed to, because daycare expenses are s. 7 expenses, not table child support.

[9] The respondent filed a text message from the applicant dated March 7, 2016, marked as Ex. #5, where she stated “The car was agreed upon for exchange of your share of babysitting costs which I have been paying in full”. This appears to confirm the respondent’s understanding of the nature of these payments.

[10] The applicant said that from the very beginning in 2013 she asked the respondent to give her money to help purchase clothes for school for the child, winter clothing, help with groceries, school trips, hot lunches at school, educational supplies, and so on. While the respondent sometimes complied with her requests for financial assistance, other times he did not, complaining that he could not afford it.

[11] The respondent, on the other hand, testified that he paid 50% of the cost of the child’s clothing and similar expenses, but provided no evidence as to what expenses were paid, when, or in what amount.

[12] Much of the testimony and argument focussed on how much time the child spent in the care of the respondent.

[13] The position of the respondent is that the applicant, at the time of separation, offered him a “50/50” shared parenting relationship, where no support would be payable. Pursuant to this agreement, he says that he had the child with him more than 40% of the time, and therefore should be relieved of the obligation to pay the table amount of child support, pursuant to s. 9 of the Child Support Guidelines.

[14] The position of the applicant is that there was never any agreement on a shared parenting arrangement, and such an arrangement would have been incompatible with their employment. The applicant worked straight days on a predictable schedule, while the respondent worked long hours in construction and was often away from home doing so. The applicant testified that the child has been in her primary care since the separation. The respondent received access on alternate weekends from Friday at 5:30 p.m. to Sunday at 8:30, together with two evenings per week from 5:30 to 8:30 p.m. She argues that the time that the child spent with the respondent was less than 20%, such that he should have been paying the table amount of child support.

[15] The respondent agreed that he had access on alternate weekends and two evenings per week, and that he generally returned the child at 8:30 p.m. on Sunday nights and at the end of each mid-week visit. He said there were times when he kept the child overnight, and that this increased after his current partner, Paula Lefave, came into his life. They started dating in July 2015 and she moved with in him in June 2016. However, Ms. Lefave testified that the child generally went home at 8:30 at the end of access visits, unless the respondent was not working. A review of the respondent’s annual income over these years shows that it ranged from $56,375 to $76,703, so he was clearly working most of the time.

[16] If the respondent returned the child at 8:30 p.m. at the end of each access visit, the time that the child spent in his care in a two-week cycle of access would amount to 63 hours, consisting of 51 hours on one weekend plus four mid-week visits of 3 hours each. A two week period consists of 336 hours, and therefore the child would have spent only 18.75% of that time in the care of his father.

[17] Even if the respondent kept the child overnight until 7:30 a.m. the next day, he would fall short of the 40% threshold. His access would consist of 62 hours on the weekend, and four mid-week visits of 14 hours each, for a total of 118 hours. This represents 35% of the total number of hours in a two week period.

[18] Accordingly, if it is appropriate to order retroactive child support for the period from September 2013 to April 2017, the respondent would not be able to rely on s. 9 of the Guidelines (the shared custody provision) to argue that an amount lower than the table amount should be ordered.

[19] The law relating to retroactive support was definitively set out in S. (D.B.) v. G. (S.R.) 2006 SCC 37. The principles that emerge from that decision, as well as other relevant principles, are helpfully and concisely set out in the decision of Curtis J. in Obodoechina v. Ayetor, 2013 ONCJ 738, at paras. 77 – 80:

These are the framework principles set out in the D.B.S. decision:

• The obligation of support arises automatically upon birth: D.B.S., para. 36-37;
• Child support is the right of the child; D.B.S., para. 60;
• The term “retroactive” is misleading in the technical sense, as these “retroactive” awards do not hold parents to a legal standard that did not exist at the relevant time: D.B.S., para. 2;
• The specific amounts of child support owed will vary based upon the income of the payor parent;
• As income levels increase or decrease so will the parents’ contributions to the needs of the children, just as they would if the family had remained together;
• Under the general Guidelines regime, the underlying theory is that the support obligation itself should fluctuate with the payor parent’s income;
• Under the general Guidelines regime, when a payor parent does not increase the amount of his support when his income increases, it is the child who loses: the child is the one who is entitled to a greater quantum of support in absolute terms: D.B.S., para. 43, 45, 47;
• The ultimate goal must be to ensure that children benefit from the support they are owed at the time when they are owed it. Any incentives for payor parents to be deficient in meeting their obligations should be eliminated: D.B.S., para. 4;
• It is clear that retroactive awards cannot simply be regarded as exceptional orders to be made in exceptional circumstances: D.B.S., para. 5;
• Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility: D.B.S., para. 5;
• Courts must be open to ordering retroactive support where fairness to children dictates it, but should also be mindful of the certainty that fairness to payor parents often demands. It is only after a detailed examination of the facts in a particular case that the appropriateness of a retroactive award can be evaluated: D.B.S., para. 6; and,
• A retroactive child support order does not involve imposing an obligation on a payor parent that did not exist at the time for which support is being claimed: D.B.S., para. 68.

In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances in front of it. In the D.B.S. cases, the court sets out these factors for a court to consider in determining whether to make a retroactive child support order:

a) Has the recipient parent supplied a reasonable excuse for delay; b) the conduct of the payor; c) circumstances of the child; and d) hardship for the payor.

There is no priority to these factors, none of these factors is decisive and they should all be considered. (D.B.S., para. 133).

A trial judge has the discretion to award retroactive child support that is fit and just in the circumstances. As part of the exercise of discretion, the trial judge must consider the fairness of such an award, including whether it will create an unreasonable debt obligation on the part of the payor: Drygala v. Pauli, supra, para 54.

The purpose of child support is to assist the custodial parent in meeting the day-to-day expenses of raising children. A party seeking retroactive child support must provide evidence that the child suffered from a lack of financial support during the period in question. Ability to pay, as well as need, must be considered by the trial judge in the exercise of his or her discretion: Brett v. Brett (1999), 44 O.R. (3d) 61, 46 R.F.L. (4th) 433 (Ont. C.A.); Hoar v. Hoar (1993), 45 R.F.L. (3d) 105 (Ont. C.A.).

[20] As to the meaning of “effective notice”, Curtis J. said the following, at para. 92:

“Effective notice” means 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. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his interest in certainty becomes less compelling: D.B.S., para. 121.

[21] Applying these principles to the facts before the court, it is clear that the respondent had an obligation to pay child support during the period in question, and he admitted in cross-examination that he knew he should be paying support for his son. However, he failed to make any child support payments until the fall of 2016. He did provide a motor vehicle for the applicant so that she could provide reliable transportation for the child, but demanded its return in March of 2016. It appears that the car had been an ongoing source of controversy in the relations between the parties, and the respondent’s demand that it be returned was, I find, a factor that led to the commencement of these proceedings that same month.

[22] While the respondent did provide some assistance in purchasing clothing and other necessities from time to time, I reject his evidence that he paid for 50% of those expenses, and prefer the evidence of the applicant in that regard. The respondent provided no evidence whatsoever to corroborate or quantify his assertion, and in my view the onus falls upon him to do so if he seeks to argue that he has satisfied his child support obligations by payments in kind.

[23] In sum, the respondent engaged in blameworthy conduct by essentially shirking his child support obligations during the period in question. He enjoyed a “support holiday” from September 2013 until April 2017. While the applicant was guilty of delay in asserting her entitlement to child support through court proceedings, this is overridden by the blameworthy conduct of the respondent. Furthermore, it appears from the text message filed that the car was being used as a bargaining tool, with the threat of it being taken away hanging over the head of the applicant, which would have dissuaded her from enforcing her rights until the respondent finally demanded that the car be returned. Within days thereafter she commenced this application.

[24] I am satisfied that the applicant gave effective notice to the respondent that she wanted support for the child shortly after the separation, when she asked him to contribute to Bryce’s clothing, school and other expenses. This was sufficient to broach the topic, and make it known to the respondent that the applicant required financial assistance from him to provide for the needs of the child.

[25] I accept the evidence of the applicant that the child suffered hardship by reason of the lack of child support. She was earning substantially less income than the respondent throughout this period, yet was providing for the child’s needs almost entirely on her own resources. She testified that she was only able to provide him with the “bare necessities”, which fell far short of what other children got. They ate a lot of pasta and rice. She couldn’t afford fresh meats so she shopped at No Frills or Food Basics in the bargain bins. She often bought second hand clothing. She was unable to put Bryce in swimming lessons when he requested it because she had no money to do so. He didn’t attend birthday parties because there was no money to buy gifts.

[26] If she is awarded retroactive support, one of the first things she intends to do is open an educational savings plan to save for Bryce’s post-secondary education, and to buy him a computer, which he sorely needs.

[27] I am satisfied that the respondent has the financial resources to pay an order for retroactive support. His annual income for 2013 to 2018 was $68,569, $68,549, $76,703, $56,025, $62,375 and $62,375 respectively. Given the narrow issue before me, I was not provided with income figures beyond 2018, except to note that the interim support order made by Tobin J. in May 2019 was based on annual income of $60,257.

[28] The applicant filed a chart marked as Ex. #2 that sets out the arrears of child support that would arise if the respondent was required to pay child support pursuant to the Guidelines from September 2013 to April 2017. I accept the figures for the first four years, which are as follows:

Year	Amount Owed	Amount Paid	Arrears
2013	$626 x 4 = $2,504	0	$2,504
2014	$626 x 12 = $7,512	0	$7,512
2015	$698 x 12 = $8,376	0	$8,376
2016	$509 x 12 = $6,108	$1,137	$4,971

[29] These amounts total $23,363. The figures for 2017 on the chart do not appear to be correct, and are not in accord with the unchallenged evidence that the respondent made four payments of $397, totalling $1,588, during the first four months of 2017, prior to the interim support order being made at the end of April 2017. Support based on income of $62,375 for one child would be $568 per month, according to the tables then in effect, for a total of $2,272 for four months. After deducting the amount paid, this creates additional arrears of $684. This brings the total arrears figure to $24,047.

[30] Exhibit #2 also goes on to calculate arrears for the balance of 2017 and for 2018, which is beyond the period at issue in this trial. I have already noted that child support accruals and payments have been kept track of by FRO since the interim order was made, and if any arrears have arisen since that order they will be reflected in the records of FRO, and will be collected by them in due course.

[31] It remains to be decided if the respondent should receive a credit for the car payments he paid of $6,980. In the arrears calculation in the Agreed Statement of Facts he was given a credit in this amount, and in the revised chart filed at trial as Ex. #2 he was also given this credit. It was only after the respondent testified that this was intended to be a contribution toward the cost of child care that the applicant changed her position and deleted the credit from her arrears calculation. Part of my task is to consider the fairness of the award I make, and it seems somewhat unfair to the respondent to be facing this change in the applicant’s position in the middle of the trial, even if it flowed from his own testimony.

[32] Another fairness consideration is the admitted fact that the respondent did pay some of the child’s expenses for clothing and other needs when asked by the applicant to do so, although he also declined to do so on other occasions. There is no evidence before the court as to how much he paid, when, or what for, but it is admitted by the applicant that he did pay something. Indeed, during cross-examination, she responded to the respondent’s question by saying “you didn’t pay all the time for clothes”. This leads to the inference that he did pay much of the time.

[33] Had the respondent been subject to an interim support order in the table amount from September of 2013 forward, it is unlikely that the applicant would have been asking him for such contributions, and equally unlikely that he would have paid, had he been asked. The inevitable response would have been that those expenses should be paid by the applicant out of the monthly child support the respondent is paying.

[34] What flows from this is that the respondent paid money to the applicant that he would not have paid had she acted diligently in enforcing her rights and obtained an interim child support order in the amount specified by the Guidelines. Ordering the respondent now to pay the full table amount of support in addition to the monies he has already paid does smack of unfairness.

[35] Given the total lack of evidence as to what the respondent paid, it is not possible to calculate what, if any, credit he should be given in this regard. However, in the exercise of my discretion, I am of the view that the arrears should be rounded down to some extent to reflect this factor.

[36] Accordingly, I fixed the arrears of child support owing by the respondent to the applicant for the period September 2013 to the end of April 2017 at $15,000.

[37] As to the manner in which those arrears should be paid, I agree with the applicant that they should be paid by way of a lump sum. The respondent has a comfortable income and should be able to borrow the money necessary to satisfy this award, instead of having the applicant be his banker. Given the chronic state of arrears reflected by the FRO statement, the applicant should not have to rely on monthly installments to recover the arrears owing. This also amounts to a quid pro quo, to some extent, for the fact that his arrears have been reduced from the total amount that the applicant would otherwise be entitled to. If the applicant must accept a reduced amount, she should at least receive it all at once rather than wait for it in installments over a period of many years. Receipt of this lump sum will also enable her to make some of the purchases and investments for Bryce that she described in her evidence.

[38] Accordingly, it is ordered that the respondent shall pay the arrears of $15,000 within 60 days.

[39] I encourage the parties to resolve the issue of costs, and thereby avoid incurring further legal costs. If they cannot do so, I will accept the brief written submissions of the applicant within 20 days, with the respondent’s responding submissions within 15 days thereafter, and any reply by the applicant within 10 days thereafter. Failing that, the parties will be deemed to have resolved the issue of costs as between themselves. Costs submissions should be filed, with proof of service on the other party or their counsel, with the Family Court Trial Coordinator in London.

Mr. Justice T. A. Heeney Date: January 27, 2020