Court File and Parties

Court File No.: FC-94-160-1 Date: 2021-03-02 Ontario Superior Court of Justice

Between: Gerard J. Gallacher, Applicant – and – Laurie G. Gallacher, Respondent

Self-represented Self-represented

Heard: In writing

Reasons for Decision

Audet J.

[1] The Applicant, Mr. Gallacher, brings an application for a variation support order pursuant to ss. 32 - 38 of Ontario’s Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13 (“ISOA”). He lives in the United Kingdom.

[2] The Respondent mother, Ms. Gallacher, and Mr. Gallacher married on June 29, 1988. At the time of their separation in April 1992, they lived in Ontario. They have two children together, Nyall (d.o.b. July 19, 1988), who is now 32 years old, and Conor (d.o.b. January 4, 1991), who is now 30 years old. At the time of the parties’ separation, the children were only one and three years old.

[3] On December 22, 1992, the parties signed a comprehensive Separation Agreement confirming that Ms. Gallacher would retain sole custody of the children, and Mr. Gallacher would pay child support in the amount of $250 per child, per month, for a total child support obligation of $500 per month. At the time of the Agreement, Mr. Gallacher was gainfully employed in Canada, apparently earning a good income but the amount of his income at the time is unknown to me.

[4] At some point in 1993 or 1994, Mr. Gallacher left his employment and moved back to the U.K. The evidence reveals that he never voluntarily paid any of the child support he had agreed to pay, even when he continued to be employed in Canada. Once he moved to the U.K., he voluntarily terminated his relationship with his children, and never sought to see or speak to them again. He has not seen or spoken to them in some 30 years. Ms. Gallacher states in her responding materials that Mr. Gallacher left Canada abandoning his two young boys, and from there he basically disappeared.

[5] In 1994, Ms. Gallacher filed the 1992 Separation Agreement with the Ontario Court for the purpose of enforcing its child support provisions in accordance with the Ontario legislation in force at that time (“the 1994 Ontario Order”). For reasons unknown to me, it was only in September 2015 that the U.K. was directed to enforce the support arrears that accrued under the 1994 Ontario Order. I suspect, although I cannot say for sure based on the evidence before me, that until then Mr. Gallacher’s whereabouts were unknown to Ms. Gallacher and the children.

[6] In any event, on or about 2015, more aggressive enforcement efforts were initiated against Mr. Gallacher in the U.K. By that time, the arrears owing by him were in the amount of $551,319.63 CAN. In the context of enforcement proceedings held before the courts in the U.K., and for reasons unknown to me, the arrears were reduced by $171,742.68 CAN in 2017. Although I do not know for sure, I presume that such reduction was to account for the fact that child support, pursuant to the Separation Agreement, was to end when the children turned 16 and ceased to be in full-time attendance in school, or when they turned 23 years of age if they pursued a post-secondary education. Taking into account the small monthly payments Mr. Gallacher was ordered to pay pending final determination of his application for a variation order (roughly $17 CAN per month), this left him owing arrears in the amount of $379,378.48. He has since continued to pay roughly $17 per month, and his arrears as of January 18, 2021 stood at $378,657.09.

[7] In October 2019, Mr. Gallacher filed a variation application pursuant to the U.K.’s interjurisdictional support legislation, seeking to rescind all arrears accrued under the 1994 Ontario Order. The variation application was forwarded to the Ontario Court to be decided pursuant to ss. 32-38 of Ontario’s ISOA. Before it was forwarded to our Court, a hearing was held before the Reciprocating Court – the Shropshire Family Court – who received evidence from Mr. Gallacher and rendered a provisional decision, rescinding £183,000 worth of arrears (based on today’s conversion rate of 1.76, this represents $322,080 CAN). If confirmed, this would leave Mr. Gallacher owing $56,577.09 in child support arrears.

[8] The Reciprocating Court based its decision to rescind that amount of arrears on the following conclusions:

• Mr. Gallacher has insufficient means to enable him to pay the support. He has no assets, no income and no savings, “other than the income he told us about”;
• Except for the “compensation payment he received approximately ten years ago”, and before he was aware of the arrears, he has not been in receipt of any large sums of money since leaving Canada;
• While working in Canada Mr. Gallacher had a substantial income and this is why he agreed to pay support at the rate set out in the Separation Agreement. However, since leaving Canada in 1993, Mr. Gallacher has not received anywhere near this income. He has instead fallen on times of hardship and unemployment;
• Significant delays in requesting that the arrears be enforced has meant that Mr. Gallacher was unaware of the significant debt accruing and has been prevented from applying to reduce the payments contained in the Separation Agreement;
• During the period of time the arrears were accruing, Mr. Gallacher did not have sufficient means to make the payments.

[9] Upon receipt of Mr. Gallacher’s variation application and the reciprocating jurisdiction’s documents, Ms. Gallacher was served with same and given an opportunity to file a response, which she did.

[10] I have reviewed both Mr. Gallacher’s variation materials and Ms. Gallacher’s response, and I am of the view that many of the factual conclusions upon which the Reciprocating Court based its provisional decision to rescind most of Mr. Gallacher’s arrears are either incorrect, or not supported by the evidence before me. Based on the evidence before me, I find myself unable to adjudicate on Mr. Gallacher’s variation application and I require further – and better – evidence to do so.

Legal Framework

[11] The following sections of Ontario’s ISOA govern the variation of support orders:

34 (1) In dealing with a support variation application, the Ontario court shall consider, (a) the evidence provided to the Ontario court; and (b) the documents sent from the reciprocating jurisdiction.

If further information or documents needed

(2) If the Ontario court needs further information or documents from the applicant to consider making a support variation order, the Ontario court shall, (a) send the designated authority a direction to request the information or documents from the applicant or the appropriate authority in the reciprocating jurisdiction; and (b) adjourn the hearing.

Choice of Law Rules

35 The following rules apply with respect to determining entitlement to receive or to continue to receive support and the amount of support:

1. In determining a child’s entitlement to receive or to continue to receive support, the Ontario court shall first apply Ontario law, but if the child is not entitled to support under Ontario law, the Ontario court shall apply the law of the jurisdiction in which the child is habitually resident.
2. In determining the amount of support for a child, the Ontario court shall apply Ontario law.

[12] In considering Mr. Gallacher’s child support variation application, I am therefore bound to apply Ontario law. The legal principles applicable to a payor’s request to retroactively vary his child support obligations, or rescind child support arrears, have been summarized by our Court of Appeal in Gray v. Rizzi, 2016 ONCA 152, 129 O.R. (3d) 201. The Court stated that where a payor seeks a retroactive decrease in support, the factors laid out by the Supreme Court of Canada in D.B.S. v. S.R.G. 2006 SCC 37, [2006] 2 S.C.R. 231 – such as taking into account the circumstances of the child, the conduct of the payor parent, the hardship of a retroactive award, and the reason for delaying in seeking a variation in support – remain relevant (para. 51). Although those factors require some minor alteration to suit circumstances where the payor’s income has gone down, not up, the fundamentals still apply (para. 54).

[13] The Court then applied the process set out in Corcios v. Burgos, 2011 ONSC 3326 as follows:

56 First, when applying the adapted D.B.S. principles on a motion to retroactively vary child support, one must always keep in mind the ultimate issue: namely, the best interests of the child: DiFrancesco, at para. 24. As Chappel J. stated, “Ultimately, the goal in addressing child support issues is to ensure that children benefit from the support they are owed when they are owed it, and any incentives for payor parents to be deficient in meeting their child support obligations should be eliminated.”

57 Next, a court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in the payor’s circumstances that affected the payor’s ability to make the child support payments when they came due.

58 A payor’s request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent.

59 Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears. As Chappel J. stated: “[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly.”

[14] In para. 60, the Court stated that the following factors should guide a court in determining whether to grant retroactive relief, the date of retroactivity, and the quantum of relief:

1. The nature of the obligation to support, whether contractual, statutory or judicial;
2. The ongoing needs of the support recipient and the child;
3. Whether there is a reasonable excuse for the payor’s delay in applying for relief;
4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;
5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.: Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears;
6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;
7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears. As put by Chappel J.: [I]f a retroactive order reducing child support would result in the child support recipient having to repay money to the child support payor, this may militate against making the order, particularly if the payor has not given the recipient notice of the change in their circumstances, has not provided appropriate disclosure to support their claim for an adjustment to the child support, or has delayed initiating court proceedings to change the order.

[15] The court considered how the retroactive award should be calculated once it is decided that there should be an adjustment in paras. 61-64 as follows:

61 If a retroactive reduction of child support is appropriate in light of these factors and any other relevant considerations, the court must determine the date from which the reduction should take place and the extent of the reduction. Following D.B.S., a retroactive order normally should commence as of the date of effective notice that a request is being made for a child support adjustment. It is generally inappropriate for a retroactive order to extend back more than three years before formal notice is given.

62 Where a payor seeks a retroactive reduction in child support or rescission of arrears, effective notice requires the payor to provide “reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately.” As put by Chappel J.: A child support recipient is entitled to expect that the existing order will be complied with, and to arrange their financial affairs respecting their children accordingly, unless they are in receipt of reasonable proof that a relevant change in the payor’s circumstances has occurred.

63 This obligation to disclose and negotiate with the recipient parent is ongoing, so that the recipient can assess and react to changes in the payor’s financial situation. A payor’s failure to comply with his continuing notice and financial disclosure obligations most likely will impact the remedy which the court crafts.

64 Finally, “with respect to the quantum of any retroactive child support order, the Child Support Guidelines apply, provided that the date of retroactivity is not prior to the date when the Guidelines came into force, and subject to the principles set out in the statutory scheme under which the Court is operating.”

[16] I am mindful that, at the time I am writing this decision, the courts in all of the Canadian provinces and territories are awaiting the Supreme Court of Canada’s decision in Colucci v. Colucci (on appeal from the Ontario Court of Appeal’s decision in Colucci v. Colucci, 2017 ONCA 892), which may very well change to a certain extent some of the legal principles set out above. However, as it stands today, the above is still good law.

Analysis

[17] Based on the legal principles applicable in Ontario, I simply cannot agree with the Reciprocating Court’s conclusion that there were significant delays in Ms. Gallacher requesting that the arrears be enforced. The evidence makes it clear that she sought the enforcement of Mr. Gallacher’s child support obligations in 1994, only two years after the Separation Agreement was signed. It is solely as a result of Mr. Gallacher’s failure to disclose his whereabouts to Ms. Gallacher that it took so many years before arrears could be enforced against him. This blameworthy conduct cannot possibly be laid at the feet of Ms. Gallacher and the children.

[18] I also cannot accept that Mr. Gallacher was “unaware” of the significant debt that was accruing under the 1994 Ontario Order, as concluded by the Reciprocating Court, and that this prevented him from applying earlier to reduce his child support payments. Mr. Gallacher was well aware of his child support obligations which were clearly laid down in a Separation Agreement that he negotiated and signed. The fact that he chose to ignore (if not evade) his child support obligations is no reason to relieve him from his obligation to meet them. This is even more so given that the Separation Agreement contained clear provisions imposing an obligation on Mr. Gallacher to disclose any changes in his income, and clearly setting out the process through which he could apply to vary his child support obligations if his income changed.

[19] Further, the evidence provided to me by Mr. Gallacher and the reciprocating jurisdiction does not allow me to determine, as required by our Court of Appeal in Rizzi, whether this is a case where Mr. Gallacher seeks relief from payment of arrears based on his current inability to pay or whether arrears accumulated due to a change in Mr. Gallacher’s circumstances that affected his ability to make the child support payments when they came due. As explained in Rizzi, this is an important distinction.

[20] Among other things, I have no evidence about the following:

• What was Mr. Gallacher’s income for each of the years during which the arrears accrued? What is the evidence supporting the Reciprocating Court’s conclusion that Mr. Gallacher did not have sufficient means to make the payments during those years? If Mr. Gallacher provided evidence to that effect to the Reciprocating Court, I have not been provided with that evidence. All I have been provided with is two statements sworn by Mr. Gallacher, each two pages in length, and a sworn financial statement confirming his current financial situation;
• What is Mr. Gallacher’s employment history for the relevant years? If he was unemployed, what efforts, if any, did he make to find gainful employment and maximize his income, as was his responsibility as a father of two young children?
• Why did Mr. Gallacher leave a lucrative employment in Canada? Was this a reasonable decision in light of his child support obligations? In his evidence, Mr. Gallacher did not explain why he chose to leave a lucrative employment in Canada to move with his mother in Scotland where, according to his sworn statement, he was unable to find employment for a whole year, forcing him to “move down south” where he found a much less lucrative job than what he had in Canada.

[21] The provisional decision of the Shropshire Family Court, and the Statement of Arrears provided by the Family Responsibility Office, confirm that in 2017, there was a significant reduction in the amount of arrears owing by Mr. Gallacher. I have not been provided with an explanation as to why that is, and how this reduction was calculated.

[22] Without all of the above information, I am unable to apply the test set out in Rizzi, or to confirm whether Mr. Gallacher’s arrears ought to be rescinded to the extent they were (provisionally) by the Reciprocating Court.

[23] In her evidence, Ms. Gallacher confirms that she had to work two jobs for many years in order to support herself and the parties’ children. She states that it was extremely difficult for the children when they were growing up, and that the family experienced extreme financial hardship. It is Ms. Gallacher’s evidence that the only reason why Mr. Gallacher “fled” out of the country was to avoid his child support obligations. While Mr. Gallacher states that he moved back to the U.K. after his father passed away to be with his mother, Ms. Gallacher states in her affidavit that Mr. Gallacher’s father passed away in 1988, shortly after the parties’ first child was born, and six years before he chose to move back to Scotland.

[24] Ms. Gallacher’s evidence is that Mr. Gallacher’s departure from Canada coincides exactly with the date at which he found out that she had filed the Separation Agreement for enforcement with the Ontario Family Responsibility Office. Her evidence strongly suggests that Mr. Gallacher, during the years that followed, actively avoided his financial obligations by not telling her where he lived, going as far as deleting his social media accounts when the parties’ children were able to locate him in the U.K. during the years in question.

[25] Based on all the above, I am not prepared to confirm the Reciprocating Court’s provisional order substantially rescinding the father’s outstanding child support arrears. I am prepared, however, to provide Mr. Gallacher with a further opportunity to provide me with all of the additional evidence that I am currently missing, as detailed above, at which time I will revisit his application for a variation order. Upon receipt of Mr. Gallacher’s additional evidence, Ms. Gallacher shall have an opportunity to provide a further response as well.

[26] Until then, this matter is adjourned and all of the arrears which were outstanding prior to the Shropshire Family Court’s provisional decision of September 3, 2019 continue to be owing by Mr. Gallacher.

Madam Justice Julie Audet Released: March 2, 2021