Araya v. Sissay, 2021 ONSC 2556

COURT FILE NO.: FC-16-2088-2

DATE: 20210407

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MELETE ARAYA

Applicant/Responding Party

– and –

SAMUEL SISSAY

Respondent/Moving Party

Self-Represented

Self-Represented

HEARD: April 6, 2021

REASONS FOR decision

Audet J.

1The respondent father, Mr. Sissay, brings a motion to change the final order of Justice Zisman dated November 24, 2015. More specifically, he seeks to reduce the child support payable to the applicant mother, Ms. Araya, for the parties’ two children Abenezer Kidane Samuel, born on February 5, 2005 (16) and Lidya Kidane Samuel, born February 9, 2008 (13), retroactive to January 1, 2020, and to rescind all arrears accrued between July 1, 2015 to December 31, 2019.

Background

2The parties were never married. They were in a brief, on-and-off relationship between 2006 and 2009 which resulted in the two children being born. The mother has re-partnered and lives in Toronto with the two children. The father is now married and has another child with his new spouse.

3By virtue of Zisman J.’s 2015 Order (“the 2015 Order”), the father is required to pay $715 per month to the mother for the support of the two children, based on an annual income of $48,000. As of December 31, 2019, the father has accumulated a total of $30,036.13 in child support arrears.

History of Proceedings

4The 2015 Order was made in the context of an uncontested proceeding, after the father was noted in default, and based on an imputed income of $48,000. The mother at the time was in receipt of social assistance.

5In 2017, the father brought a motion to change the 2015 Order to adjust his ongoing child support and to rescind arrears accrued between 2015 and 2017. As the mother resided in Toronto, the matter was heard by the Ottawa court provisionally pursuant to s. 44 of the Family Law Act, R.S.O. 1990, c. F.3. (“FLA”).

6On November 14, 2017, Justice Engelking adjusted the father’s ongoing child support to $112.00 per month, based on his 2016 income of $12,546 commencing on August 1, 2017. On that date, only the father’s ongoing child support was adjusted.

7On July 12, 2018, Justice Summers addressed the issue of arrears. She reduced the father’s monthly child support to $98 per month commencing on July 1, 2015, and to $114.00 per month commencing on January 1, 2016 until December 31, 2016. These amounts were based on the father’s 2015 and 2016 annual income of $12,118 and $12,546, respectively.

8Summers J.’s provisional order was then forwarded to the Toronto jurisdiction for confirmation.

9On March 7, 2019, this matter came before Justice Zisman. On that date, Justice Zisman made an endorsement that was to be sent to the father, requiring him to provide additional information. It is the father’s evidence that he never received Zisman J.’s endorsement. When the matter returned before him on May 29, 2019, Justice Zisman dismissed the father’s motion to change mainly on the basis that the additional disclosure he had requested had not been provided by the father. On that basis, the 2015 Order was restored, retroactively to the date it was made.

10On June 27, 2019, the father appeared before me in the context of default proceedings initiated by the Family Responsibility Office (“FRO”). In my endorsement made on that day, I made the following observation:

It is disconcerting to see that what appears to be a very strong case has now been dismissed based on the father’s failure to disclose, something that appears to be a pattern on his part.

In any event, I feel I must balance the right of the first family to court-ordered support with the need of the payor’s second family, which includes another child, and his ability to pay an ongoing child support order which on its face appears to be grossly exaggerated.

11In those circumstances, I allowed the father to bring a new motion to change to vary the 2015 Order and deal with accrued arrears. I also ordered the father to start paying $350.00 per month in ongoing child support.

12With the assistance of duty counsel, the father expeditiously brought his second motion to change which was filed with the court on January 28, 2020. Due to the pandemic and the suspension of regular court operations, this matter was unfortunately delayed by a year.

13In the motion to change which is now before this court, the father seeks to vary his ongoing child support obligations from January 1, 2020, and to rescind all arrears accrued between July 1, 2015 and December 31, 2019. He also seeks to be credited an alleged overpayment of $5,020.83, to be applied first towards arrears that have accrued during 2020, and then towards ongoing child support.

The Legal Framework

14This is an application under s. 37 of the FLA, which is governed by s. 44 of that Act, because both parties reside in Ontario but more than 150 kilometers away from each other. Today, I am required to make a provisional order which will then be forwarded to the mother's jurisdiction, Toronto, to be confirmed or varied.

15The 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 retroactively decrease 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 these factors require some minor alteration to suit circumstances where the payor’s income has gone down, not up, the fundamentals still apply (par. 54).

16The 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.”

17In paragraph 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.

18The 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.”

19I 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; 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

20As stated earlier, the 2015 Order was made based on an imputed income of $48,000, as the father did not participate in the original proceeding. The father’s annual income from 2014 onwards, as demonstrated in his Income Tax Returns and Notices of Assessment for those years (provided), was as follows:

2014: $13,156, comprising of net business income (gross business income of $52,030 minus motor vehicle expenses of $35,394, meals and entertainment expenses of $2,880 and telephone/utilities of $600)

2015: $12,118, comprising of net business income of $12,118 (gross business income of $47,602 minus motor vehicle expenses of $35,483)

2016: $12,546, comprising of net business income of $10,640 and social assistance of $1,906 (gross business income of $31,803 minus motor vehicle expenses of $21,163)

2017: $7,200, comprising entirely of social assistance

2018: $9,151, comprising of gross business income of $6,151 (no business expense deducted) and social assistance of $3,000

2019: $9,643, comprising of net business income (gross business income of $28,247 minus motor vehicle expenses of $18,603)

21The father provided the following evidence about his employment and overall circumstances since the 2015 Order was made.

22In 2015, the father was working as a taxi driver for part of the year. Around the time the 2015 Order was made, he was in Africa for a period of two months visiting a close relative who was ill. While in Africa, he was not working.

23In 2016, the father worked as a delivery person and then was receiving social assistance. In 2017, the father’s only income comprised of benefits from Ontario Works. During those two years, the father explains that he was dealing with criminal charges. After he participated in anger management, those charges were withdrawn. The father indicates that it was difficult for him to find work while he was dealing with his criminal charges. Additionally, due to enforcement proceedings by the FRO, his driver’s licence was suspended, which made it even more difficult for him to find employment. Given that the father’s trade was in the “driving” industry, not having a licence precluded him from continuing to work in that capacity.

24In 2018, the FRO released the father’s driver’s licence back to him, which allowed the father to find employment. From October 18, 2018 until February 8, 2019, he worked as a subcontractor for Swift Delivery Systems, using his own car to make deliveries. In early February 2019, his car broke down and since he did not have the money to pay for repairs, he had to stop working.

25The father was eventually able to borrow some money from friends to repair his vehicle, and around the month of May or June 2019, he resumed working as a delivery person. Those repairs are part of the motor vehicle expenses deducted from his gross business income that year. In 2019, the father was a driver for Uber and Lyft. In 2020, he drove only for Uber.

26When he originally filed his motion to change in January 2020, the father indicated that as an Uber and Lyft driver, he could make anywhere between $2,000 and $3,000 per month. His monthly income is dependent on how many rides he takes, how busy it is, whether he receives tips, and so on. As he uses his own car to make deliveries, car and maintenance costs as well as gas expenses are rightfully deducted from his monthly gross income. Significant fees must also be paid to Uber and/or Lyft, which are also rightfully deducted from his business income for child support purposes. For the months of January and February 2020, the father earned approximately $3,500 per month, or $1,800 per month net (after expenses), driving for Uber.

27As part of his motion materials, the father provided monthly tax statements given to him by Uber. Those statements support the estimated income figures suggested by the father.

28On October 30, 2020, the father provided an updated affidavit. He indicated that, due to the pandemic, his income beginning in April 2020 was reduced dramatically. Further, after having been exposed to a customer who later tested positive for the virus, the father had to self isolate for a period of 15 days. After this incident, he became wary of taking a lot of fares which would have exposed his family and his young child to COVID.

29Between April and July 2020, the father’s gross monthly income was less than $2,500 in total. For the months of August and September 2020, the father earned roughly $2,000 of gross business income. He indicates that while Uber rides have picked up from August/September, he states that they are nowhere near the pre-pandemic numbers. In September, he earned a total of $1,143, and he estimates that he will be able to earn roughly $1,000 per month for the rest of the year. I accept that the COVID pandemic has had a drastic negative effect on the father’s trade.

30To supplement his income, in April 2020, the father applied for and began receiving the CERB, in the amount of $2,000 per month (April to September 2020). In October 2020, the father applied for the new Canada Recovery Benefit (CRB) and, starting in November 2020, he began receiving $1,800 per month, in addition to whatever business income he was able to make driving for Uber.

31For the year 2020, the father estimates that his combined gross income from all sources will be in the range of $24,197 including the CERB and CRB received, as well as net business income from Uber (as per exhibit “E” of his October 30, 2020 affidavit).

Determination of Income

32A support payor’s income must be determined according to s. 15 to 20 of the Child Support Guidelines, S.O.R./97-175, as amended (“Guidelines”). According to s. 19(1) of the Guidelines, 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;

(g) the spouse unreasonably deducts expenses from income.

33I accept, based on the evidence before me, that at the time the 2015 Order was made, the father did not earn the level of income imputed upon him. However, I am not prepared to change the amount of child support he was imposed by the Court for the year 2015, or to rescind arrears accrued during that year. An income of $48,000 was imputed to him based on the best evidence the Court had at the time because the father chose not to participate in that proceeding or to provide the relevant disclosure allowing the Court to accurately determine his income for child support purposes. A party to a proceeding who chooses not to participate for no valid reason cannot later ask for the court’s indulgence and assistance in rectifying a court order that was made based on the best evidence available at the time.

34For those years during which the father earned business income driving for Uber or other such platform, I note that the father deducted from his gross business income 100% of all his motor vehicle costs. During those years, his declared net business income (annualized for those years when he did not work throughout the year) never came close to what he would have earned if he had found full-time employment earning minimum wages.

35It is difficult, if not impossible, based on the written evidence before me to assess the proportion of the father’s motor vehicle expenses that were true business expenses and that which were personal in nature. Surely, the father used his only vehicle for personal purposes as well as for business reasons, not just for his driving business. Without evidence from the mother, or the benefit or cross-examination, it is difficult for me to assess what the father’s true income for child support purposes might have been for all those years, considering ss. 19(1)(g) of the Guidelines. I note, however, that according to his 2020 business income estimates, the father’s true business expenses (motor vehicle expenses and Uber fees) represent roughly 50% of his gross business income. This is very different from the figures set out in his yearly Income Tax Returns for the previous years, during which his business expenses comprised of 64% to 78% of his gross business income.

36What is clear from the record before me is that with the exception of the years 2016 and 2017, during which the father was dealing with criminal charges and a suspended driver’s licence which had a significant impact on his ability to find employment, there are no health or other reasons which would have precluded the father from earning at least minimum wage income. A parent’s duty to support his dependant children requires that he or she make all reasonable efforts to find gainful employment and maximize his or her income. I find that if the father’s driving business cannot yield more than minimum wage income during any given year (except for 2016-2017), then it was an unreasonable choice on his part to remain in that trade, and he ought to have secured full-time employment elsewhere.

37For those reasons, I find that the father’s income for the relevant years was as follows:

• 2015: $48,000, as per the 2015 Order;

• 2016: $20,000, which is a rounded-up amount that I impute upon the father based on the (then) minimum wage income he could have earned during the year ($21,645 based on an hourly wage of $11.25 for 37 hours per week), recognizing that in 2016, the father relied on social assistance for his basic needs for a month or two;

• 2017: $7,200, comprising entirely of social assistance;

• 2018: $9,151, comprising of gross business income of $6,151 (no business expense deducted) and social assistance benefits of $3,000;

• 2019: $27,417, which I impute upon him based on minimum wage income of $14.25 per hour, 37 hours per week);

• 2020: an estimated income of $25,000.

38Based on the above income, Mr. Sissay should have paid the following child support for his two children from July 1, 2015 to December 31, 2019:

• 2015: $715 per month from July 1 to and including December 1, 2015 (December 31, 2011 Tables), for a total of $4,290;

• 2016: $306 per month for 12 months, for a total of $3,672;

• 2017: $0.00;

• 2018: $0.00;

• 2019: $419 per month for 12 months, for a total of $5,016;

for a total of $12,978.

39According to the father’s own calculations (as set out in Schedule “G” of his October 30, 2020 affidavit and the FRO’s Statement of Arrears), he has paid a total of $8,973.05 during that period of time. This results in arrears owing in the amount of $4,004.95.

40Based on his estimated income of $25,000 in 2020, Mr. Sissay should have paid $376 per month from January 1, 2020 to present.

41Mr. Sissay seeks an order rescinding all arrears owing (set at $30,036.13 according to the FRO’s Statement of Arrears) as of December 31, 2019. I find that he should have been able to pay child support commensurate with the income that I have imputed to him as set out above. While Mr. Sissay is currently experiencing a set back due to the COVID pandemic, he has shown that, in normal circumstances, he should be able to earn a yearly net business income in the range of what he would earn working full-time at a minimum wage employment, or more.

42For all those reasons, I am prepared to rescind some, but not all his arrears. In light of his ongoing child support obligations, limited income, very modest means and periods of reliance upon social assistance as his sole source of support, I find that his arrears owing to December 31, 2019 should be set at $3,000, payable at the rate of $50 per month until fully paid.

Provisional Order

43As a result, I make the following provisional order:

1- The father’s child support arrears owing as of December 31, 2019 are set at $3,000.

2- Beginning on January 1, 2020 and every month thereafter until further varied, the father shall pay child support in the amount of $376 for the two children, based on an estimated income of $25,000 for 2020.

3- Any amount paid by Mr. Sissay towards child support from January 1, 2020 onwards, as recorded by the FRO, shall be credited towards ongoing child support (owing from January 1, 2020 to present). Any arrears of child support (owing as of December 31, 2019 or owing from January 1, 2020 to present) shall be repaid at the rate of $50.00 per month until fully repaid.