COURT FILE NO.: FS-18-41124
DATE: 20210113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
E.J.
Applicant
– and –
K.A.
Respondent
Self-Represented
Self-Represented
HEARD: January 12, 2021
Conlan j.
REASONS FOR JUDGMENT
I. Introduction
The Issue
[1] Should the Final Order made by Gray J. (the “Order”) be changed, as it pertains to the child support obligations borne by the moving party father, K.A.?
[2] That is the question to be decided. K.A. obviously says yes, and he wants the arrears (more than $28,000.00) wiped-out, and he wants the support for the two children (10 and 7 years old) reduced from the $2097.00 monthly in the Order to just $100.00 per month commencing November 1, 2019. Section 7 expenses for the children would be split as follows: 90% to be paid by the responding party mother, E.J., and 10% to be paid by K.A. Other relief is sought as well.
[3] E.J. says no; she wants the Order to remain unchanged.
The Order
[4] The Order, entirely on consent, was made on March 12, 2019. The operative child support provision, clause 15, was based on K.A.’s annual gross income from his job in Nunavut ($122,499.00) and his pension income from Nigeria ($15,000.00 Canadian per annum), totalling $137,499.00. The pension was earned through prior employment with Royal Dutch Shell. The $122,499.00, to the significant benefit of K.A., excluded his more than $24,000.00 annual northern allowance paid to him by the Government of Nunavut.
The Motion to Change
[5] K.A.’s Motion to Change, dated September 18, 2020, is based on alleged material changes in circumstances: (i) a mental breakdown suffered by K.A. which has had him on sick leave from his job in Nunavut for a considerable period of time, and (ii) his planned return to Nigeria, where the parties are from.
The Onus and the Standard of Proof
[6] The moving party father, K.A., bears the onus of proof in this proceeding, and the standard of proof is on a balance of probabilities.
The Hearing
[7] The father’s Motion to Change was not heard by way of a trial. Justice Coats had directed a one-hour hearing, by oral submissions only, which took place via Zoom on January 12, 2021. Affidavit evidence and facta had been filed by both sides, each self-represented.
II. Analysis and Decision
[8] The below framework follows the decision of the Court of Appeal for Ontario in Punzo v. Punzo, 2016 ONCA 957.
The Alleged Material Changes in Circumstances
[9] In terms of what constitutes a material change in circumstances, I might pose the question this way: had the “new” circumstances existed at the time of the making of the consent Order, would the parties have likely come to a different bargain? Punzo, at paragraph 34.
[10] A “material” change is one that has some degree of continuity to it and not merely a temporary set of circumstances. Gray v. Rizzi, 2016 ONCA 152, at paragraph 39.
[11] I do not accept K.A.’s argument that his proposed return to Nigeria constitutes a material change in circumstances. The planned return is not concrete as it depends on the within decision of the Court (K.A. acknowledged that during the hearing) and the worldwide COVID-19 pandemic (K.A.’s materials acknowledge that).
[12] I do accept, however, K.A.’s argument that his current employment situation constitutes a material change in circumstances. As a result of what I find to be a legitimate mental health issue, the major source of K.A.’s income that the Order was premised on – his job in Nunavut, subsequent to the Order having been made, has evaporated.
[13] Applying Gray v. Rizzi, supra, there is no dispute that K.A. has been on sick leave without pay since early October 2019. There is equally no dispute that the said situation has continued now for more than a year.
[14] Having regard to Punzo, supra, I conclude that K.A. would very likely not have consented to the Order if the subsequent sick leave without pay had been known or reasonably anticipated by him at the time.
[15] As for my finding that the sick leave and the underlying cause therefor are legitimate, I rely upon the supporting documentation attached as exhibits to K.A.’s affidavit sworn on August 20, 2020.
The Request for a Retroactive Change in Child Support
[16] Set out below are paragraphs 43 through 52 of the decision of the Court of Appeal for Ontario in Punzo.
[43] In Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at p. 688, the Supreme Court described the proper analysis as requiring that a court “determine first, whether the conditions for variation exist and if they do exist what variation of the existing order ought to be made in light of the change in circumstances.” In other words, a finding of a material change in circumstances does not end the analysis. The court must then consider the appropriate change in support justified by the change. This framework applies to both changes to child support, as in Willick, and spousal support, as in L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775.
[44] In D.B.S., the Supreme Court outlined a framework for addressing retroactive increases in child support, and later held that similar considerations to those set out in D.B.S. are relevant to a retroactive award of spousal support: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 207. For retroactive change, a court must first determine whether retroactive support should be ordered, having regard to a number of factors: D.B.S., at para. 99. Once it is determined that retroactive support should be ordered, the court must decide the date of retroactivity and the amount of support: D.B.S., at para. 117.
[45] The motion judge’s decision pre-dated this court’s judgment in Gray, which held that the framework from D.B.S. for retroactive increases in support also applies to retroactive reductions.
[46] In my view, although the motion judge did not have the benefit of Gray, she erred by failing to engage in either step of the D.B.S. analysis, and she did not consider (i) whether retroactive relief was appropriate in this case and, if so, (ii) the appropriate retroactivity date and quantum of support. Regarding the first step, as this court stated in Gray, at paras. 57-59, there is a difference between (i) relief from payment of arrears based on current inability to pay, and (ii) relief from arrears accumulated due to a change in the payor’s circumstances that affected the payor’s ability to make the support payments as they come due. The difference is that in the first category, the payor had the ability to pay at the time the arrears first accrued. Relief under the former category is unlikely unless the payor establishes, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. However, a court has more discretion to grant relief from arrears under the latter category.
[47] The respondent effectively sought relief under both categories: the first category by seeking to reduce child and spousal support between the period of January 2013 to October 2013 before any material change had occurred, and the second category by seeking to reduce support after the material change in November 2013.
[48] In Corcios v. Burgos, 2011 ONSC 3326, at paras. 45-47, Chappel J. outlined the factors to guide a court in determining whether to grant relief under the second category in the context of child support (which this court adopted in Gray, at para. 60):
The nature of the support obligation, whether contractual, statutory or judicial;
The ongoing needs of the support recipient and the child;
Whether there is a reasonable excuse for the payor’s delay in applying for relief;
The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;
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;
Delay on the part of the recipient in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears; and
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.
[49] In my view, the motion judge erred by reducing the respondent’s support effective January 1, 2013 without finding that the respondent had established, on a balance of probabilities, that he could not and would not ever be able to pay the arrears that accrued before the material change in circumstances. The motion judge also failed to consider any of the factors listed above regarding relief from arrears that accumulated as a result of the material change.
[50] Regarding the second step of the analysis, at para. 118 of D.B.S., the court identified four possible dates from which an award may be retroactive:
The date when the application was made to the court;
The date when formal notice was given to the other party;
The date when effective notice was given to the other party (effective notice does not require legal action; all that is required is that the topic be broached); or
The date when the amount of child support should have increased/decreased, being “the time when circumstances changed materially”: para. 124.
(2)Date of retroactivity and quantum of support
[51] The Supreme Court in D.B.S. held that, where a retroactive award is appropriate, the general rule is that the date of effective notice should serve as the date to which the award should be retroactive: at para. 118. In other words, effective notice serves as the presumptive start date for a retroactive support award.
[52] The motion judge failed to consider the presumptive start date of effective notice and failed to consider any factor that might suggest a different start date for child or spousal support, such as, in this instance, the fact that paragraph 5 of the Support Order provided that “[u]nless in the event of a catastrophic circumstances [sic], the Respondent shall not apply to vary the support prior to June 30, 2014.”
[17] Applying that analysis to our case, despite the agreed fact that prior counsel for K.A. sent an email to E.J. on October 31, 2019, providing notice of the requested reduction of child support, I am of the opinion that any change should not take effect prior to October 1, 2020 (the first day of the first month following the date of the Motion to Change).
[18] In his factum, on page 3, K.A. points to just one thing in writing on the issue of effective notice of his request to change child support – the email from his then lawyer.
[19] That email is found at exhibit “C” to K.A.’s August 2020 affidavit. The email is six lines long. It attaches nothing from the Government of Nunavut or any health care provider, although something from both was readily available to be provided. It does not state why K.A. was on sick leave. It does not provide any details whatsoever, whether a plan of treatment (even informal) or a diagnosis or a prognosis.
[20] Then, when instant consent from E.J. was not provided, which I find to be understandable in the circumstances, K.A. waited another eleven months to bring the Motion to Change. A few of those months preceded the arrival of the virus. Even since the virus arrived, there was nothing preventing K.A. from taking further steps to prepare and proceed with the filing and service of the Motion to Change. His failure to do so is not justified, and the resulting inordinate delay only now serves to prejudice the mother and the two children who are depending on some enforcement of the accumulated arrears. Remember that, until early October 2019, K.A. was earning far in excess of E.J.’s income.
[21] The next step that this Court must undertake is to decide what income should be used for K.A., which will determine the child support to be paid by him starting October 1, 2020.
The Income Determination
[22] I do not accept K.A.’s submission that his gross income should be fixed by this Court as being $12,000.00 per year.
[23] First, there is no independent evidence before this Court on the annual value of K.A.’s pension.
[24] Second, there is no independent evidence before this Court to suggest that K.A. cannot work at anything, anywhere. The evidentiary burden rests with K.A. The only recent medical evidence filed is a measly two-sentence note from a family physician dated November 25, 2020, which says that K.A. will be re-assessed in 2-3 weeks but at that time was “unable to go back to work due to his medical condition”.
[25] In my view, “back to work” means back to the job in Nunavut.
[26] This is a man who was making big money as a project manager. His education, professional credentials, and work experience are impressive – see the affidavit of E.J. sworn on January 6, 2021.
[27] I accept that K.A. has ongoing mental health issues, and I accept that, although his employment in Nunavut has never been terminated, those issues likely prevent him from returning to that job in the foreseeable future (mainly because of the isolated environment).
[28] I do not accept, however, that K.A. is medically unfit to work in any capacity. And I do not know what the true value of his pension income is.
[29] So, what income should this Court attribute to K.A.? It is part art and part bad science, but whatever figure is chosen has to stand-up to some examination of the basis for the amount. Berta v. Berta, 2015 ONCA 918.
[30] The evidence is lacking. E.J. suggested in her submissions about 80% of what K.A. was earning in Nunavut, plus the pension. She pointed to no evidence in support of that. K.A. made no submissions at all on this issue.
[31] I need some further help from the parties. I am reluctant to do this, but we can accomplish something quickly.
[32] I order that each side shall provide to the other and file with the Court office in Milton a brief affidavit to address the following question, and only the following question: what income should be imputed to K.A. starting October 1, 2020? It has to be an affidavit because it may contain evidence rather than just a submission. The affidavit must be no longer than two pages, maximum, excluding exhibits (typed, double-spaced, at least 12-point font, and regular margins). E.J. shall file hers by 4:00 p.m. on January 18, 2021. K.A. shall file his by 4:00 p.m. on January 22, 2021. Nothing from either side will be accepted after those deadlines. The Court will decide the issue promptly after January 22nd, regardless of whether each side has filed something.
[33] Failure to comply strictly with paragraph 32 herein will result in whatever is filed being ignored. For example, if the filing attempts to re-argue points already decided and strays away from the singular question posed above, it will be discarded.
[34] In addition, at the same time, so that we do not have to do anything else on this file afterwards, each side shall serve and file a one-page document outlining his/her position on costs.
[35] The parties can address costs now because most of the Motion to Change is being disposed of herein – it is allowed in part; the Order shall be varied to reduce the child support payable by K.A. to “x” dollars per month commencing on October 1, 2020, based on a gross annual income of “y” dollars. The division of section 7 expenses between the parties starting on October 1, 2020 will be dependent on the income chosen for K.A. and using $85,000.00 per annum for E.J. Nothing will be changed pre-October 1, 2020. Putting aside the issue of costs, all other relief sought in the Motion to Change shall be dismissed.
[36] A Final Order shall issue in accordance with these Reasons and those that will be released after January 22nd.
(“Original signed by”)
Conlan J.
Released: January 13, 2021
COURT FILE NO.: FS-18-41124
DATE: 20210113
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
E.J.
Applicant
– and –
K.A.
Respondent
REASONS FOR JUDGMENT
Conlan J.
Released: January 13, 2021