COURT FILE NO.: 11505/00
DATE: 2020/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PATRICIA TOMS
Applicant
– and –
ROY CHARLES TOMS
Respondent
Luigi De Lisio, for the Applicant
Self Represented
HEARD: November 25 and 26, 2020
Turnbull J.
JUDGMENT
[1] This matter came before the court in the form of a motion issued by the applicant on May 29, 2019. In it, she sought retroactive child support from the respondent with respect to their two sons Nathan and Matthew and an order that the respondent provide his tax returns and Notices of Assessment from 2011 to date.
[2] Mr. Toms, the respondent, filed a cross motion seeking an order dismissing the applicant’s motion on the grounds that child support had ceased to be payable in 2016 by mutual consent of the parties.
[3] After a series of attendances before Judges of this court in case conferences and settlement conferences, it was ordered that this be heard by viva voce evidence.
[4] The parties have never divorced. The motions are therefore brought under the Family Law Act.[^1] There is no rule in Ontario that after a particular number of years a custodial parents’ claim for child support is extinguished. Our courts are to consider each case on a case by case basis.[^2] Recently, the Supreme Court of Canada held that child support awards can be enforced by retroactive awards to enforce pre-existing obligations and to recover monies owed but yet unpaid.[^3]
[5] The parties were married in 1993 and separated in 2000. In 2003 they signed detailed Minutes of Settlement and they were ultimately incorporated virtually verbatim into a consent order signed by Henderson J. on November 10, 2003.
[6] The parties had two sons born to them during their relatively short marriage. Nathan was born March 22, 1997 and his younger brother Matthew was born on September 15, 1998.
[7] Upon separation, the boys lived with their mother while the respondent enjoyed regular access visits with them. That continued uninterrupted until 2014 when difficulties arose with Matthew’s behaviour.
[8] From the time of separation, the respondent paid child support for both boys in accordance with the terms of the separation agreement. While that agreement provided the parties could demand evidence of the earnings of the other party during the preceding tax year, it appears that neither party availed themselves of that right.
[9] On May 30, 2008, Tucker J. heard an application brought by the applicant. An order was issued in which the above mentioned provisions of Henderson J’s order were deleted and they were replaced with the following:
Until the Respondent’s obligation to pay child support terminates, the amount of child support payable by the Respondent shall be reviewed annually on 01 July commencing in 2008. The Respondent’s child support shall be based upon his income from the immediately preceding year, and adjusted retroactively to 01 January of the year in which the review occurs.
To facilitate the annual review and adjustment of child support, commencing in June 2008, and on or before 01 June of each year thereafter for as long as the Respondent has an obligation to pay child support, each party will deliver to the other true copies of:
(a) his or her income tax returns as filed with Revenue Canada for the immediately preceding tax year;
(b) his or her Notices of Assessment or Reassessment (and if not received by 01 June, then within two weeks of receipt);
(c) current information about the children’s special or extraordinary expenses, if claimed, and
(d) such other information as may be applicable under s. 21 of the Child Support Guidelines and necessary to review child support.
[10] A year later, the parties were back before the courts in their lengthy battle. On August 25, 2009, I signed a consent endorsement which provided in paragraph v as follows:
The parties will adjust the child support annually by June 1st of each year beginning in 2010. The respondent shall provide the applicant with a copy of his tax return by that date, and a copy of his Notice of Assessment (when received).
[11] As Ms. Toms stated in her testimony, she found it was of no avail to ask the respondent for his tax information as he never willingly produced it. Instead, he began paying child support for his two sons based on paragraph iv of that endorsement which required him to pay $1,333.00 per month based on his 2008 income of $94,224.93. He paid that amount until he terminated child support payments in August 2016.
[12] I do not feel that it was incumbent on the applicant to keep bringing motions to obtain the respondent’s tax information. She clearly earned a lot less income than the respondent and was accordingly less able to bear the cost of retaining counsel to repeatedly bring motions to enforce the court order. The order was mandatory that he was to provide it annually on or before June 1st each year. It was a consent order. I have listened to Mr. Toms in this proceeding and he is an articulate, intelligent man. He knew, or had to know, that his income had increased from his 2009 earnings upon which his child support obligations were based.
[13] Because of the issues which have arisen with respect to the residency of the boys over the years and the associated obligation to pay child support, I feel it is only fair to calculate what should have been paid by each party during the entirety of the period from 2010 to the end of Nathan’s college education in the spring of 2020.
The Issues
[14] At the outset of this trial, the parties agreed the following issues were before the court:
1 a. How long is child support payable with respect to Matthew?
b. What amounts are owing according to the Child Support Guidelines?
- a. How long is child support payable with respect to Nathan?
b. What amounts are owing according to the Child Support Guidelines?
[15] The parties agree that the respondent was to pay his child support based on his Line 150 income from the preceding year. His income for the years in question is as follows[^4]:
` 2010…$92,000 2014…$125,000 2018:...$113,208
2011…$113,000 2015…$122,382 2019:…$125,852
2012…$129,000 2016…$125,638
2013…$122,000 2017…$119,468
[16] The applicant earned considerably less income in the comparable years:
2011…$41,053 2014…$41,355 2017…$45,611[^5]
2012…$44,593 2015…$43,778 2018…$51,807
2013…$42,782 2016…$43,421 2019…$46,320
July 1-December 31, 2014.
[17] As stated, both boys lived with their mother until June 2014. Ms. Toms testified that at that time, Matthew’s behaviour became more and more troublesome. It ultimately got so bad that she had to call the police to come to her residence because of Matthew’s unruly behaviour. As a result, he was removed from the home and went to live with his father. She recalled that he remained residing with his father until August 21, 2014 when Matthew had to be hospitalized due to his aberrant behaviour. Upon his release from hospital, she recalled that Matthew remained with her. Mr. Toms was emphatic that Matthew resided with him from October 2014 to the end of June 2015 when his school year ended. He was able to recall that Matthew had transferred to a new high school in Welland due to difficulties he was having in his former high school. He recalled all he had to do to get the school bus to pick Matthew up at his residence which is in a rural area outside Welland.
[18] Unfortunately, neither party provided supporting documentation to prove their recollection was correct. Ms. Toms did attempt to prepare a chronology listing the dates that each child was residing with her.[^6] She did so when she realized this matter was going to court. She attempted to piece it together from emails, phone messages, Facebook messages, emails and the records Matthew had with respect to his school and the other courses he took. However, none of that supporting documentation was provided to the court.
[19] There is no dispute that for two months (late June to late August 2014) Matthew lived with his father. As for the months of September 1, 2014 to December 31, 2014, I find that Matthew lived approximately half time with his father and half time with his mother. I accept Mr. Tom’s evidence that in October 2014, Matthew did move to live with him when his mother called the police. On that occasion, the police accidently ran over his cell phone as they apprehended him. Mr. Toms recalled that he got Matthew enrolled in soccer while they were living together.
[20] I find that in 2014, Mr. Toms had an obligation to pay child support for two children for 8 months of the year and for one child for four months of the year. Ms. Toms had an obligation to pay child support for four months of the year when Matthew was living with his father.
2015 Child Support Calculation:
[21] The year 2015 was equally confusing from the evidence of the parties. Ms. Tom’s chart shows that in the spring of the year, Matthew spent two or three short periods living with his father which amounted to about a month. She further agreed through counsel that late in the year around November, he spent approximately two more months living with his father but that was not shown on her chart.
[22] I find Mr. Tom’s evidence more compelling and logical as to where Matthew was living in 2015. I find that as Mr. Tom’s explained, Matthew primarily lived with him until June 2015 while he was finishing grade 11. He would nevertheless visit and stay with his mother and brother Nathan from time to time.
[23] Mr. Toms explained that in June, 2015, Nathan then moved to Welland to live with his friends and his girlfriend. Part of the reason for the move was that Mr. Toms lives in the country and his residence does not have good internet reception.
[24] At that point, he ceased living with his father in his residence. Ms. Toms’s chart was amended by her to show that Matthew lived 7 months with her in 2015 from June 2, 2015 to the end of the year.
[25] On the evidence before me, I find that Matthew lived six months with his mother and six months with his father in 2015 and child support is to be calculated on that basis. I find that Nathan lived with his mother for the entire year.
2016 Child Support Calculation:
[26] Mr. Toms recalled that when school commenced in September 2015, Matthew was almost immediately expelled for a week. He described that as the beginning of the end of his educational progress as he only attended school sporadically during that school year. That is confirmed by the school record for Matthew dated April 2016 confirming his attendance was very poor.[^7] He recalled they tried to get him into a job training program but he never succeeded in the job placement part of it. That school record showed Matthew’s home address as being that of Mr. Toms.
[27] Ms. Tom’s chart shows that in January and February 2016, Matthew lived with his mother. In March 2016, Matthew moved to live with his dad and that she wrote to FRO to adjust their records accordingly. Thereafter, Matthew only spent three weeks living with his mother until August 1st, when child support for both boys was terminated by Mr. Toms. In the other months of 2016, Matthew was hospitalized three times for his emotional problems and lived intermittently with friends and his father. His father bought a trailer where Matthew was able to live when he was at Mr. Toms’ property. Apparently, Matthew had stolen some things belonging to his father when his father was not home and Mr. Toms felt it was better to have Matthew reside separately but on the same property.
[28] Mr. Toms continued to pay child support to the applicant for two children during this entire time and only stopped doing so on August 1, 2016. In his helpful calculations, Mr. De Lisio acknowledged that in fact Mr. Toms did pay child support for two children to the applicant for eight months in 2016.
[29] I find that in 2016, Mr. Toms was only obliged to pay child support for two children for three months and child support for one child for only eight months.
[30] After August, 2016, Mr. Toms paid no further child support. Both parties that Matthew never returned to school and as he is over the age of 18, there was no further obligation of the respondent to pay child support for him.
[31] The situation is not the same with respect to Nathan. In September, 2015, he registered to take an Art and Design Foundation course at Niagara College. Despite his evident artistic ability, he did not find it enjoyable and depending on whose version of evidence I accept, he dropped out of the program in either January or April 2016. It appears from the transcripts of Nathan’s grades[^8] that he was enrolled for the winter 2015 semester but failed every course with marks so bad that it is difficult to believe he attended classes to the end of the semester. I accept Mr. Tom’s recollection on this matter that he dropped out of classes near the end of January 2016.
[32] The chart prepared by Ms. Toms indicates that Nathan moved out of his mother’s residence in July 2016 for four months to live with a friend in an apartment. Mr. Toms helped him with the payment of his share of the rent until his co-tenant was unable to pay his half of the rent. Thereupon, Nathan moved back to reside with his mother around November 10, 2016. During this period of time, Ms. Toms explained that Nathan began seeking and following medical advice to obtain help for his attention/deficit disorder. He did not work outside the home in this period of time but purportedly worked with a friend or friends online attempting to develop programming to support a video game.
[33] In the spring of 2017, having found medication which agreed with him and helped him, Nathan decided to return to Niagara College in another program. With help from his father, he applied to be re-admitted and to obtain student loans. He was successful with both endeavours and returned to school in September 2017. He successfully completed his three year course in April 2020. His father is now helping him repay approximately $15,000 of student loan debt which he accumulated while taking his course. Mr. Toms advised that in September 2020, he began making payments of $200 per month towards the loans and interest accruing on the loans and that he plans to do so until they are paid off. During the entirety of the time he was completing his course, Nathan lived with his mother and his father paid no child support.
[34] Mr. Toms stated that he did not feel he was obliged to do so based on the terms of the Separation Agreement[^9] negotiated by the parties in 2003 and which was incorporated virtually verbatim into the order of Henderson J. dated November 10, 2003.
[35] In particular, he relied on paragraph 5.5 of that agreement which reads as follows:
End of Child Support:
(5.5) Child Support ends for each child when:
(1) the child ceases to be a “child” as defined in the Divorce Act,
(2) the child no longer resides with the custodial parent. (“Resides includes the child living away from home for school, summer employment or vacation),
(3) the child turns 18, unless the child is unable to become self-supporting due to illness, disability, education or other cause.
(4) the child becomes self-supporting,
(5) the child obtains one post-secondary degree or diploma,
(6) the child marries,
(7) the child dies,
(8) Child support for a child ends when the child is no longer a “child” as defined by the Guidelines.
[36] Mr. Toms submitted that in early 2016, when Nathan quit his first program at Niagara College, he indicated that he did not want to return to school and that he wanted to move out of his mother’s home and become independent. That is why he assisted him in paying rent for those four months. In his view, under the terms of the separation agreement, Nathan no longer was residing with his mother and his contractual obligation to pay child support had come to an end.
[37] Mr. De Liscio has submitted that due to his attention/deficit disorder, Nathan was unable to finish his course nor could he become self-supporting due to his condition. In that respect, Ms. Toms drew the attention of the court to medical correspondence dated 2004 which reflects the ongoing investigation of Nathan’s attention/deficit issue. Mr. Toms candidly acknowledged that he and the applicant were both aware of the problem when he was a little boy. It appears that at least until 2016, Nathan had not taken medications to attempt to reduce the effects of his medical condition.
[38] I am satisfied on the evidence that in the period from when he abandoned his first course at Niagara College to the time of his re-enrollment in September 2017, Nathan was unable to become self-supporting due his disability and his lack of education. The best evidence of that is Mr. Toms’ paying his rent for his son instead of having him simply earn the money from a job to pay his own rent.
[39] In the circumstances, I find that Mr. Toms was obliged to pay child support for Nathan from December 1, 2016 to the end of April 2020 when he completed his diploma program at Niagara College.
[40] I calculate the sums payable in accordance with the Child Support Guidelines as follows:
2010 Amount payable: $1,113.00 x 12 =$13,356.00
Amount paid: $1,333.00 x 12 =$15,996.00
Total Credit for 2010 to Mr. Toms: $ 2,640.00 (over paid)
2011 Amount payable: $1,306.00 x 12 = $15,672.00
Amount paid: $1,333.00 x 12 = $15,996.00
Total Credit for 2011 to Mr. Toms: $ 324.00 (over paid)
2012 Amount payable: $1,586.00 x 12 =$19,032.00
Amount paid: $1,333.00 x 12 =$15,996.00
Total Owing for 2012 by Mr. Toms: $3,036.00
2013 Amount payable: $1,769.00 x 12 =$21,228.00
Amount paid: $1,333.00 x 12 =$15,996.00
Total Owing for 2013 by Mr. Toms: $5,232.00
2014 Amount payable: $1,683.00 x 8 =$13,464.00 (for two children)
Amount paid: $1,333.00 x 8 =$10,664.00
$ 2,800.00 (underpaid by Mr. Toms)
Amount Payable: $1,053.00 x 4 =$4,212.00 (by Mr. Toms for one child)
Amount paid: $1,333.00 x 4 =$5,332.00
$1120 (overpayment by Mr. Toms)
Amount Payable: $ 386.00 x 4 = $1,544.00 (by Ms. Toms for one child)
Amount Paid: $ nil = $1,544 (underpaid by Ms. Toms)
Total Owing for 2014 by Mr. Toms: $136.00
2015 Amount payable: $1,724.00 x 6 = $10,344.00 (Mr. Toms for two children)
Amount payable: $1,078.00 x 6 = $ 6,468.00 (Mr. Toms for one child)
Amount paid: $1,333.00 x 12 =$15,996.00
$ 816.00 (overpayment by Mr. Toms)
Amount payable: $372 x 6 = $2,232.00 (Mrs. Toms for one child)
Amount paid: Nil = $2,232.00 (underpaid by Ms. Toms
Total Credit for 2015 to Mr. Toms: $3,048.00
2016 Amount payable: $1,690.00 x 3 = $5,070.00 (Mr. Toms for two children)
Amount payable: $1,056.00 x 8 = $8,448.00 (Mr. Toms for one child)
Amount paid: $1,333.00 x 8 = $10,664.00
$ 2,854.00 (underpayment by Mr. Toms)
Total owing by Mr. Toms for 2016: $2,854.00
2017 Amount paid: $ 0.00 x. 12 = $0.00
Amount payable: $ 1,081.00 x 12 =$12,972.00 (Mr. Toms for one child)
$12,972.00 (underpayment by Mr. Toms)
Total owing by Mr. Toms for 2017: $12,972.00
2018 Amount paid: $ 0.00 x 12 = $0.00
Amount payable: $1,032.00 x 12 = $12,348.00 (Mr. Toms for one child)
$12,768.00 (underpayment by Mr. Toms)
Total owing by Mr. Toms for 2018: $12,768.00
2019 Amount paid: $0.00 x 12 = $0.00
Amount payable: $1,014.00 X 12 =$12,168.00 (Mr. Toms for one child)
$12,168.00 (underpayment by Mr. Toms)
Total owing by Mr. Toms for 2019: $12,168.00
2020 Amount paid: $0.00 x 4 = $0.00
Amount payable: $ 1,114.00 x 4 =$4,456.00 (Mr. Toms for one child)
$ 4,456.00 (underpayment by Mr. Toms)
Total owing by Mr. Toms for 2019: $4,456.00
Summary:
Total owing by Mr. Toms: $53,622.00
Less credits due Mr. Toms:- $ 6,012.00
Total Owning to Ms. Toms: $47,610.00
Conclusion:
[41] The applicant shall have judgment against the respondent for the sum of $47,610.00 for arrears of child support. This judgment shall be enforced through the office of the Director of Family Responsibility unless otherwise agreed by the parties. It is ordered that the respondent pay this judgment monthly in the amount of $1,000.00, commencing on the 15th day of December 2020 and thereafter, until it is fully paid together with post judgment interest thereon.
[42] It is ordered that this judgment shall bear post-judgment interest at the rate of 2 per cent per annum.
[43] I recognize that this is a significant sum of money to be paid. I have ordered that it be repaid monthly for the following reasons. I have taken into account the disparity of the incomes of the parties, the failure of the respondent to provide his income information annually as ordered by the court and the fact that this payment will not in my view cause the payor undue hardship if it is repayable over a period of time. On the other hand, the applicant did not bring this motion in a timely way when it was evident that Nathan was returning to full time studies at Niagara College. Mr. Toms’ belief that entitlement to child support no longer existed as of August 2016 was not an unreasonable position on the facts of this case.
Costs
[44] I will receive written submissions with respect to costs. Mr. De Lisio shall serve and file his written submissions including any offers to settle, and a costs summary with supporting dockets on or before December 7, 2020. Mr. Toms shall serve and file responding materials on or before December 17th 2020. Mr. De Lisio may serve and file brief reply submissions on or before December 22, 2020.
Turnbull, J.
Released: November 27, 2020.
COURT FILE NO.: 11505/00
DATE: 2020/11/27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PATRICIA TOMS
Applicant
– and –
ROY CHARLES TOMS
Respondent
Luigi De Lisio, for the Applicant
Self Represented
REASONS FOR JUDGMENT
Turnbull, J.
Released: November 27, 2020
[^1]: R.S.O. 1990, c. F.3 as am.
[^2]: Brett v Brett, 1999 CanLII 3711 (ON CA), [1999] O.J. No. 1384 (ONCA).
[^3]: Michel v Graydon, 2020 SCC 24
[^4]: Exhibit 6 and Exhibit 3. The applicant’s income for the years in question is also found in exhibit 3.
[^5]: I have inserted her employment income for 2018. She explained that her line 150 income was $64,647 because she had to withdraw funds from her RRSP to cover living expenses. The figure of $51,218 for 2018 also reflects an inflated amount as she also had to withdraw RRSP funds that year to help cover living expenses. However, her tax return was not included in the evidence to determine her actual employment income.
[^6]: Exhibit 2, tab 5.
[^7]: Exhibit 4, tab 3, page 20.
[^8]: Exhibit 2, tab 2.
[^9]: Exhibit 5.