COURT FILE NO.: FS-09-66801-003
DATE: 2020 08 27
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Lisa Sharpe Applicant
v.
Howard Henningham Respondent
BEFORE: Bloom, J.
COUNSEL: Lisa Sharpe, self-represented
Stephanie Tadeo, counsel for the Respondent
HEARD: August 17, 2020
E N D O R S E M E N T
I. INTRODUCTION
[1] The matter was argued before me orally by the parties as a hearing on the Motion to Change filed in April of 2018 by the Respondent, and on the Applicant’s Response also filed during that month.
[2] Both parties addressed the final order of Justice Seppi dated October 26, 2009, which provided in the material portions that commencing January 1, 2010 the Respondent was to pay to the Applicant table child support for two children being $659.00 per month based on his annual income of $43,578.00, along with $90.00 per month for special extraordinary expenses; the $90.00 was based on the Respondent’s having a 40% share of income under s. 7(2) of the Federal Child Support Guidelines.
[3] The two children are Kahleel Sharpe-Henningham born September 2, 2000 and Kayona Sharpe-Henningham born November 30, 1994.
[4] The parties had been married on July 19, 1999 and divorced March 22, 2010.
II. GOVERNING LEGAL PRINCIPLES
A. Retroactive Variation of an Order for Child Support
[5] In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at paras. 62-66, 74, 88, 89, 94-118, 121-125, and 127-130 Justice Bastarache for the majority of the Court set out the principles applicable to retroactive variation of child support orders:
5.2.2.1 Awarding Retroactive Support Where There Has Already Been a Court Order for Child Support to Be Paid
62 A first situation where a recipient parent may claim retroactive support is where there has already been a court order for child support, but this amount has been inadequate for some time. The most common cause for an application of this variety would be an increase in the payor parent’s income that is not reflected by an increase in the amount of child support paid. In addition to a request for prospective variation, a parent in this situation would ask for a retroactive award representing an additional amount due.
63 The immediate concern with such retroactive awards is that they disturb the certainty that a payor parent has come to expect: see Andries v. Andries (1998), 1998 CanLII 14093 (MB CA), 126 Man. R. (2d) 189 (C.A.), at para. 48. A payor parent who diligently follows the instructions of a court order may expect that (s)he would not be confronted with a claim that (s)he was deficient in meeting his/her obligations. After all, until it is varied, a court order is legally binding. It provides comfort and security to the recipient parent, but it also provides predictability to the payor parent. Put most simply, the payor parent’s interest in certainty appears to be most compelling where (s)he has been following a court order.
64 On the other hand, parents should not have the impression that child support orders are set in stone. Even where an order does not provide for automatic disclosure, variation or review, parents must understand that it is based upon a specific snapshot of circumstances which existed at the time the order was made. For this reason, there is always the possibility that orders may be varied when these underlying circumstances change: see s. 17 of the Divorce Act; s. 18(2) of the Parentage and Maintenance Act. But even if the parents choose not to seek variation of an order, depending on why (and how freely) this choice was made, the child may still have the right to receive support in the amount that should have been payable. The certainty offered by a court order does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support.
65 In my view, a court order awarding a certain amount of child support must be considered presumptively valid. This presumption is necessary not only to maintain the certainty promised by a court order, but also to maintain respect for the legal system itself. It is inappropriate for a court, just as it is inappropriate for a parent, to assume that a previously ordered award is invalid.
66 The presumption that a court order is valid, however, is not absolute. As noted above, the applicable legislation recognizes that a previously ordered award may merit being altered. This power will be triggered by a material change in circumstances. Notably, the coming into force of the Guidelines themselves constitutes such a change under the federal regime: s. 14(c) of the Guidelines. An increase in income that would alter the amount payable by a payor parent is also a material change in circumstances: s. 14 of the Guidelines; Willick, at p. 688; see also s. 18(2) of the Parentage and Maintenance Act. Thus, where the situations of the parents have changed materially since the original order was handed down, that original order may not be as helpful as it once was in defining the parents’ obligations.
74 In summary, a payor parent who diligently pays the child support amount ordered by a court must be presumed to have fulfilled his/her support obligation towards his/her children. Acting consistently with the court order should provide the payor parent with the benefit of predictability, and a degree of certainty in managing his/her affairs. However, the court order does not absolve the payor parent — or the recipient parent, for that matter — of the responsibility of continually ensuring that the children are receiving an appropriate amount of support. As the circumstances underlying the original award change, the value of that award in defining parents’ obligations necessarily diminishes. In a situation where the payor parent is found to be deficient in his/her support obligation to his/her children, it will be open for a court, acting pursuant to the Divorce Act or the Parentage and Maintenance Act, to vary an existing order retroactively. The consequence will be that amounts that should have been paid earlier will become immediately enforceable.
88 The situation under the Divorce Act is more complex. Under s. 15.1(1), an order may be made that requires a parent to pay “for the support of any or all children of the marriage”. The term “child of the marriage” is defined in s. 2(1) as
a child of two spouses or former spouses who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life;
The question then arises when the “material time” is for retroactive child support awards. If the “material time” is the time of the application, a retroactive child support award will only be available so long as the child in question is a “child of the marriage” when the application is made. On the other hand, if the “material time” is the time to which the support order would correspond, a court would be able to make a retroactive award so long as the child in question was a “child of the marriage” when increased support should have been due.
89 In their analysis of the Guidelines, J. D. Payne and M. A. Payne conclude that the “material time” is the time of the application: Child Support Guidelines in Canada (2004), at p. 44. I would agree. While the determination of whether persons stand “in the place of . . . parent[s]” is to be examined with regard to a past time, i.e., the time when the family functioned as a unit, this is because a textual and purposive analysis of the Divorce Act leads to this conclusion; but the same cannot be said about the “material time” for child support applications: see Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999] 1 S.C.R.242, at paras. 33-37. An adult, i.e., one who is over the age of majority and is not dependent, is not the type of person for whom Parliament envisioned child support orders being made. This is true, whether or not this adult should have received greater amounts of child support earlier in his/her life. Child support is for children of the marriage, not adults who used to have that status.
94 The foregoing analysis only confirms that courts ordering child support will generally have the power to order it retroactively. But having determined that a court may order a retroactive child support award, it becomes necessary to discuss when it should exercise that discretion.
95 It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with the purposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactive awards may also cause hardship to a payor parent in ways that a prospective award would not. In short, while a free-standing obligation to support one’s children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevant time period has passed.
96 Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility in this area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to be settled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in this regard. Prospective awards serve to define a new and predictable status quo; retroactive awards serve to supplant it.
97 Lest I be interpreted as discouraging retroactive awards, I also want to emphasize that they need not be seen as exceptional. It cannot only be exceptional that children are returned the support 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 amounts of support first arose.
98 Before canvassing the myriad of factors that a court should consider before ordering a retroactive child support award, I also want to mention that these factors are not meant to apply to circumstances where arrears have accumulated. In such situations, the payor parent cannot argue that the amounts claimed disrupt his/her interest in certainty and predictability; to the contrary, in the case of arrears, certainty and predictability militate in the opposite direction. There is no analogy that can be made to the present cases.
99 I will now proceed to discuss the factors that a court should consider before awarding retroactive child support. None of these factors is decisive. For instance, it is entirely conceivable that retroactive support could be ordered where a payor parent engages in no blameworthy conduct. Thus, the British Columbia Court of Appeal has ordered retroactive support where an interim support award was based on incorrect financial information, even though the initial underestimate was honestly made: see Tedham v. Tedham (2003), 20 B.C.L.R. (4th) 56, 2003 BCCA 600. At all times, a court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix.
5.3.1 Reasonable Excuse for Why Support Was Not Sought Earlier
100 The defining feature linking the present appeals is that an application for child support — either as an original order or a variation — could have been made earlier, but was not. The circumstances that surround the recipient’s choice (if it was indeed a voluntary and informed one) not to apply for support earlier will be crucial in determining whether a retroactive award is justified.
101 Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practical concerns associated with a child support application. They should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family. Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice: see Chrintz v. Chrintz (1998), 1998 CanLII 14891 (ON SC), 41 R.F.L. (4th) 219 (Ont. Ct. (Gen. Div.)), at p. 245. On the other hand, a recipient parent will generally lack a reasonable excuse where (s)he knew higher child support payments were warranted, but decided arbitrarily not to apply.
102 Not awarding retroactive child support where there has been unreasonable delay by the recipient parent responds to two important concerns. The first is the payor parent’s interest in certainty. Generally, where the delay is attributable to unreasonableness on the part of the recipient parent, and not blameworthy conduct on the part of the payor parent, this interest in certainty will be compelling. Notably, the difference between a reasonable and unreasonable delay often is determined by the conduct of the payor parent. A payor parent who informs the recipient parent of income increases in a timely manner, and who does not pressure or intimidate him/her, will have gone a long way towards ensuring that any subsequent delay is characterized as unreasonable: compare C. (S.E.) v. G. (D.C.). In this context, a recipient parent who accepts child support payments without raising any problem invites the payor parent to feel that his/her obligations have been met.
103 The second important concern is that recipient parents not be encouraged to delay in seeking the appropriate amount of support for their children. From a child’s perspective, a retroactive award is a poor substitute for past obligations not met. Recipient parents must act promptly and responsibly in monitoring the amount of child support paid: see Passero v. Passero, 1991 CanLII 8165 (ON SC), [1991] O.J. No. 406 (QL) (Gen. Div.). Absent a reasonable excuse, uncorrected deficiencies on the part of the payor parent that are known to the recipient parent represent the failure of both parents to fulfill their obligations to their children.
104 In deciding that unreasonable delay militates against a retroactive child support award, I am keeping in mind this Court’s jurisprudence that child support is the right of the child and cannot be waived by the recipient parent: Richardson, at p. 869. In fact, I am not suggesting that unreasonable delay by the recipient parent has the effect of eliminating the payor parent’s obligation. Rather, unreasonable delay by the recipient parent is merely a factor to consider in deciding whether a court should exercise its discretion in ordering a retroactive award. This factor gives judges the opportunity to examine the balance between the payor parent’s interest in certainty and fairness to his/her children, and to determine the most appropriate course of action on the facts.
5.3.2 Conduct of the Payor Parent
105 This factor approaches the same concerns as the last one from the opposite perspective. Just as the payor parent’s interest in certainty is most compelling where the recipient parent delayed unreasonably in seeking an award, the payor parent’s interest in certainty is least compelling where (s)he engaged in blameworthy conduct. Put differently, this factor combined with the last establish that each parent’s behaviour should be considered in determining the appropriate balance between certainty and flexibility in a given case.
106 Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactive award. Further, I believe courts should take an expansive view of what constitutes blameworthy conduct in this context. I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support. A similar approach was taken by the Ontario Court of Appeal in Horner v. Horner (2004), 2004 CanLII 34381 (ON CA), 72 O.R. (3d) 561, at para. 85, where children’s broad “interests” — rather than their “right to an appropriate amount of support” — were said to require precedence; however, I have used the latter wording to keep the focus specifically on parents’ support obligations. Thus, a payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments: see Hess v. Hess (1994), 1994 CanLII 7378 (ON SC), 2 R.F.L. (4th) 22 (Ont. Ct. (Gen. Div.)); Whitton v. Shippelt (2001), 293 A.R. 317, 2001 ABCA 307; S. (L.). A payor parent cannot intimidate a recipient parent in order to dissuade him/her from bringing an application for child support: see Dahl v. Dahl (1995), 1995 ABCA 425, 178 A.R. 119 (C.A.). And a payor parent cannot mislead a recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not.
107 No level of blameworthy behaviour by payor parents should be encouraged. Even where a payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in a blameworthy manner if (s)he consciously chooses to ignore them. Put simply, a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see A. (J.) v. A. (P.) (1997), 1997 CanLII 12394 (ON SC), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), at pp. 208-9; Chrintz.
108 On the other hand, a payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour. Whether a payor parent is engaging in blameworthy conduct is a subjective question. But I would not deny that objective indicators remain helpful in determining whether a payor parent is blameworthy. For instance, the existence of a reasonably held belief that (s)he is meeting his/her support obligations may be a good indicator of whether or not the payor parent is engaging in blameworthy conduct. In this context, a court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent’s belief that his/her obligations were being met. Equally, where applicable, a court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, a payor parent should be presumed to be acting reasonably by conforming to the order. 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.
109 Finally, I should also mention that the conduct of the payor parent could militate against a retroactive award. A court should thus consider whether conduct by the payor parent has had the effect of fulfilling his/her support obligation. For instance, a payor parent who contributes for expenses beyond his/her statutory obligations may have met his/her increased support obligation indirectly. I am not suggesting that the payor parent has the right to choose how the money that should be going to child support is to be spent; it is not for the payor parent to decide that his/her support obligation can be acquitted by buying his/her child a new bicycle: see Haisman v. Haisman (1994), 1994 ABCA 249, 22 Alta. L.R. (3d) 56 (C.A.), at paras. 79-80. But having regard to all the circumstances, where it appears to a court that the payor parent has contributed to his/her child’s support in a way that satisfied his/her obligation, no retroactive support award should be ordered.
5.3.3 Circumstances of the Child
110 A retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time. Parents must endeavour to ensure that their children receive the support they deserve when they need it most. But because this will not always be the case with a retroactive award, courts should consider the present circumstances of the child — as well as the past circumstances of the child — in deciding whether such an award is justified.
111 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. As I mentioned earlier, it is a core principle of child support that, after separation, a child’s standard of living should approximate as much as possible the standard (s)he enjoyed while his/her parents were together. Yet, this kind of entitlement is impossible to bestow retroactively. Accordingly, it becomes necessary to consider other factors in order to assess the propriety of a retroactive award. Put differently, because the child must always be the focus of a child support analysis, I see no reason to abstract from his/her present situation in determining if a retroactive award is appropriate.
112 Consideration of the child’s present circumstances remains consistent with the statutory scheme. While Parliament has moved away from a need-based perspective in child support, it has still generally retained need as a relevant consideration in circumstances where a court’s discretion is being exercised: see ss. 3(2)(b), 4(b)(ii) and 9(c) of the Guidelines. Some provinces, like Quebec, even provide courts with discretion to alter default child support arrangements, within defined limits, on the basis of need: see art. 587.1 of the Civil Code of Québec, S.Q. 1991, c. 64. Unless the applicable regime eliminates need as a consideration in discretionary child support awards altogether, I believe it remains useful to retain this factor when courts consider retroactive awards.
113 Because the awards contemplated are retroactive, it is also worth considering the child’s needs at the time the support should have been paid. A child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive child support will be less convincing where the child already enjoyed all the advantages (s)he would have received had both parents been supporting him/her: see S. (L.). This is not to suggest that the payor parent’s obligation will disappear where his/her children do not “need” his/her financial support. Nor do I believe trial judges should delve into the past to remedy all old familial injustices through child support awards; for instance, hardship suffered by other family members (like recipient parents forced to make additional sacrifices) are irrelevant in determining whether retroactive support should be owed to the child. I offer these comments only to state that the hardship suffered by children can affect the determination of whether the unfulfilled obligation should be enforced for their benefit.
5.3.4 Hardship Occasioned by a Retroactive Award
114 While the Guidelines already detail the role of undue hardship in determining the quantum of a child support award, a broad consideration of hardship is also appropriate in determining whether a retroactive award is justified.
115 There are various reasons why retroactive awards could lead to hardship in circumstances where a prospective award would not. For instance, the quantum of retroactive awards is usually based on past income rather than present income; in other words, unlike prospective awards, the calculation of retroactive awards is not intrinsically linked to what the payor parent can currently afford. As well, payor parents may have new families, along with new family obligations to meet. On this point, 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. In short, retroactive awards disrupt payor parents’ management of their financial affairs in ways that prospective awards do not. Courts should be attentive to this fact.
116 I agree with Paperny J.A., who stated in D.B.S. that courts should attempt to craft the retroactive award in a way that minimizes hardship (paras. 104 and 106). Statutory regimes may provide judges with the option of ordering the retroactive award as a lump sum, a series of periodic payments, or a combination of the two: see, e.g., s. 11 of the Guidelines. But I also recognize that it will not always be possible to avoid hardship. 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.
5.4 Determining the Amount of a Retroactive Child Support Award
117 Once a court determines that a retroactive child support award should be ordered, it must decide the amount of that award. There are two elements to this decision: first, the court must decide the date to which the award should be retroactive, and second, the court must decide the amount of support that would adequately quantify the payor parent’s deficient obligations during that time. I will consider each issue in turn.
5.4.1 Date of Retroactivity
118 Having established that a retroactive award is due, a court will have four choices for the date to which the award should be retroactive: the date when an application was made to a court; the date when formal notice was given to the payor parent; the date when effective notice was given to the payor parent; and the date when the amount of child support should have increased. For the reasons that follow, I would adopt the date of effective notice as a general rule.
121 Choosing the date of effective notice as a default option avoids this pitfall. By “effective notice”, I am referring to 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/her interest in certainty becomes less compelling.
122 Accordingly, by awarding child support from the date of effective notice, a fair balance between certainty and flexibility is maintained. Awaiting legal action from the recipient parent errs too far on the side of the payor parent’s interest in certainty, while awarding retroactive support from the date it could have been claimed originally erodes this interest too much. Knowing support is related to income, the payor parent will generally be reasonable in thinking that his/her child’s entitlements are being met where (s)he has honestly disclosed his/her circumstances and the recipient parent has not raised the issue of child support.
123 Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions should move forward. If they do not, legal action should be contemplated. While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. The federal regime appears to have contemplated this issue by limiting a recipient parent’s request for historical income information to a three-year period: see s. 25(1)(a) of the Guidelines. In general, I believe the same rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.
124 The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child’s support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing a material change in circumstances — including an increase in income that one would expect to alter the amount of child support payable — is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.
125 The proper approach can therefore be summarized in the following way: 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.
127 While the Divorce Act provides courts with discretion in deciding whether or not a child support award should be ordered, the same cannot be said for the quantum of this award. Both s. 15.1(3) for original orders, and s. 17(6.1) for variation orders, stipulate that a court making an order “shall do so in accordance with the applicable guidelines”. Therefore, so long as the date of retroactivity is not prior to May 1, 1997 — i.e., when the Guidelines came into force — the Guidelines must be followed in determining the quantum of support owed. The Parentage and Maintenance Act, on the other hand, does not fetter courts’ discretion in determining the quantum of child support awards: see s. 18. Courts awarding retroactive support pursuant to this statute will have greater discretion in tailoring the award to the circumstances.
128 That said, courts ordering a retroactive award pursuant to the Divorce Act must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the applicable Tables is not required — nor is it recommended. There are two ways that the federal regime allows courts to affect the quantum of retroactive awards.
129 The first involves exercising the discretion that the Guidelines allow. Thus, the presence of undue hardship can yield a lesser award: see s. 10. As stated above, it will generally be easier to show that a retroactive award causes undue hardship than to show that a prospective one does. Further, the categories of undue hardship listed in the Guidelines are not closed: see s. 10(2). And in addition to situations of undue hardship, courts may exercise their discretion with respect to quantum in a variety of other circumstances under the Guidelines: see ss. 3(2), 4 and 9.
130 A second way courts can affect the quantum of retroactive awards is by altering the time period that the retroactive award captures. While I stated above that the date of effective notice should be chosen as a general rule, this will not always yield a fair result. For instance, where a court finds that there has been an unreasonable delay after effective notice was given, it may be appropriate to exclude this period of unreasonable delay from the calculation of the award. Unless 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 the circumstances of the case
B. S. 7 of the Federal Child Support Guidelines
[6] S. 7 of the Federal Child Support Guidelines provides:
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:
(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 and 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.
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.
Subsidies, tax deductions, etc.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must 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 relating to the expense.
Universal child care benefit
(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.
C. S. 19 of the Federal Child Support Guidelines
[7] S. 19 of the Federal Child Support Guidelines provides:
Imputing income
19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the 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 spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the 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 spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
Reasonableness of expenses
(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.
III. ANALYSIS
[8] I have considered the materials before me, and, in particular, the Applicant’s affidavit of February 12, 2019, her factum of July 1, 2020, the Respondent’s affidavit of January 17, 2019, his affidavit of March 20, 2019, his affidavit of February 6, 2020, his affidavit of July 24, 2020, and his factum of July 24, 2020.
[9] I now will address the issues raised by the claims of the parties, having regard to the legal principles set out above.
A. Retroactivity
[10] It is agreed by the parties that Kahleel is still a “child of the marriage” for purposes of the Divorce Act.
[11] Based on the affidavit of the Applicant dated February 12, 2019, including exhibits, and in particular paragraph 23, I am satisfied that Kayona was a child of the marriage until the end of May of 2019, the end of her business management program at Humber College. Until that time she was a full-time student dependent on her mother, the Applicant, for support.
[12] The Applicant first gave the Respondent effective notice of her claims for child support and s. 7 expenses on May 16, 2013 during a case conference. I am satisfied based on the Applicant’s affidavit of February 12, 2019 that she was unable to pursue those claims until she confirmed his whereabouts by reason of the materials he supplied on his motion to change now before this Court.
[13] I am not impressed by the credibility or reliability of the Respondent who has been vague in his evidence about the current state of arrears owed by him in child support payments. To her credit his counsel was forthright in that regard in oral submissions.
[14] Based on the principles in D.B.S., supra I am satisfied that the claims of the Applicant for retroactive child support and s. 7 expenses for both children should be fixed as properly operative three years before the filing of her Response to the Motion to Change; accordingly, they are to be calculated as of April of 2015. I have considered the factors enumerated in D.B.S. in a holistic manner; in particular, I have regard to the fact that the Respondent was not at all diligent in making sure that the economic needs of his children reflected his changes in income. To the contrary, as I have noted, the Applicant was not even given by him proper notification of his whereabouts. Fairness, however, dictates that the Respondent will be given credit for any overpayment of child support or s. 7 expenses determined to have been made in the course of addressing the Applicant’s claim, despite any failure of the Respondent to seek that relief explicitly.
B. Quantum of Child Support and S. 7 Expenses
[15] Although the Applicant has argued that I should impute income to the Respondent, I am not satisfied that she has established a basis for me to do so. I will, therefore, make my orders for child support and s. 7 expenses, both retroactive and prospective, based on the income of the Respondent and Applicant as set out in federal tax Notices of Assessment or Reassessment or as admitted by a party or both parties.
[16] The income of the Respondent for the relevant years was as follows based on the indicated source:
2015 Notice of Reassessment $44039
2016 Notice of Reassessment $68773
2017 Notice of Reassessment $68530
2018 Admitted by Parties $71296
2019 Admitted by Respondent $ 58,011
[17] For the Applicant the figures and sources are as follows:
2015 Assessment $111706
2016 Reassessment $128747
2017 Reassessment $118551
2018 Assessment $92669
[18] Based on the income of the Respondent I will now address the issue of his liability for retroactive child support and future child support. I am assuming that a change in income of the Respondent is a material change in circumstances. Further, despite the fact that the Respondent has a child from another relationship, he has not provided sufficient evidence to justify the application of s. 10(1) and (2)(d) of the Federal Child Support Guidelines regarding undue hardship.
[19] I am now setting out in three columns based on the income of the Respondent as stipulated above what his child support obligation was for the years in question, and based on payment pursuant to the order of Justice Seppi, what his underpayment or overpayment was:
Year Table Amount Owed Underpayment-
Overpayment+
2015 $648 monthly $99+
2016 $1020 monthly $4332-
2017 $ 1017 monthly, except $1044 for December $4323-
2018 $ 1086 monthly $5124-
2019 $884 monthly until May, and thereafter $ 536 monthly $264-
[20] Based on those figures the Respondent would owe 13,944 in child support arrears if he had paid the $659 per month ordered by Justice Seppi. However, his counsel admitted arrears of $ 4753.70 owed on account of both child support and s. 7 expenses as ordered by Justice Seppi. Once I make the calculation of the arrears or overpayment of s. 7 expenses, I will take the admitted arrears into account in my final calculation.
[21] Before addressing s. 7 expenses, however, I vary the order of Justice Seppi to provide for ongoing child support for Kahleel of $536 monthly based on the 2019 income figure for the Respondent as stated above. That $ 536 was payable as of January 1, 2020 and is to be paid on the first of each month. Assuming payment in accordance with Justice Seppi’s order, the Respondent would be entitled to a credit for overpayment of $ 123.00 per month for the first eight months of 2020, totalling $984; I reiterate that my final calculation will take into account the admitted current arrears of the Respondent.
[22] In my view the changes in the incomes of the parties and in the appropriate s. 7 expenses constitute material changes in circumstances warranting my variation of Justice Seppi’s order regarding them. I have used the incomes of the parties as set out above; and I have assessed in accordance with s. 7 of the Federal Child Support Guidelines the appropriate quantum of the s. 7 expenses claimed by the Applicant as supported by her Affidavit of February 12, 2019. I have determined that the Respondent was responsible for 28% of the s. 7 expenses in 2015, amounting to $2265 (for the portion of the year covered by my retroactive order); for 35% in 2016, amounting to $2546; for 37% in 2017, amounting to $4219; for 43% in 2018, amounting to $8709; for 43% in 2019 (I used the same proportion as in 2018, since I lacked evidence of the Applicant’s income for that year), amounting to $5550.
[23] The Respondent argued in his factum that I should take into account that the Applicant failed to consult him regarding s. 7 expenses. I reject that argument, because he failed to adduce any evidence that he attempted to use the mechanism for consultation between the parties regarding s. 7 expenses built into Justice Seppi’s order; that mechanism provided for annual readjustment of prior year expenses.
[24] In determining the amount of s. 7 expenses to be ordered retroactively paid by the Respondent I must give him credit for the $90 monthly he paid, subject to the issue of the admitted arrears mentioned above. Subject to that issue of arrears, he would, therefore, owe in s. 7 expenses $18159.
[25] Going forward for 2020 he is to pay monthly 43% of the s. 7 expenses (to be determined otherwise in accordance with Justice Seppi’s order, including the consultation mechanism). I have used 43% as in 2018, because I lack income amounts for the parties for 2020.
[26] The total arrears owed by the Respondent are $35872.70 consisting of the arrears in child support of $13944 assuming payment of the amount ordered by Justice Seppi, the arrears of s. 7 expenses of $ 18159 assuming payment of the amount ordered by Justice Seppi, the admitted arrears of $ 4753.70 in the amount of child support and s. 7 expenses ordered by Justice Seppi, and the overpayment of $ 984 in child support for 2020. I order that the Respondent pay that sum of total arrears owed to the Applicant.
[27] Further, a Support Deduction Order is to be issued. The parties are to cooperate in having that order and the companion Information Form processed by the appropriate court officials. I shall assist as required by those officials.
IV. COSTS
[28] I shall receive written costs submissions of no more than 3 pages, excluding a bill of costs. The Applicant is to serve and file her submissions within 14 days of release of this endorsement by one e-mail to the Respondent’s counsel and my assistant, Sara Stafford, whose e-mail address is Sara.Stafford@ontario.ca. The Respondent is to serve and file his submissions within 14 days of service of the Applicant’s submissions by one e-mail to the Applicant and Ms. Stafford. There shall be no reply.
Bloom, J.
DATE: August 27, 2020
COURT FILE NO.: FS-09-66801-003
DATE: 2020 08 27
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Lisa Sharpe
v.
Howard Henningham
BEFORE: Bloom, J.
COUNSEL: Lisa Sharpe, self-represented
Stephanie Tadeo, counsel for the Respondent
ENDORSEMENT
Bloom, J.
DATE: August 27, 2020