Court File and Parties

BARRIE COURT FILE NO.: FC-17-1646-00 DATE: 20210709 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Heather Marie Davies, Applicant AND: John Benjamin Maynard, Respondent

BEFORE: The Honourable R. S. Jain

COUNSEL: Applicant, self-represented Respondent, self-represented

HEARD: May 25 & 26, 2021

Trial Decision

Introduction

[1] The applicant and respondent were involved in a short dating relationship that resulted in a child, namely “KHD” born November 30, 1999 (hereinafter referred to as either “K” or “the child”). I have initialized the child’s name to protect her privacy.

[2] The parties arrived at and followed their own agreement regarding child support from 1999 until 2007 wherein the respondent paid $305 per month. This amount was never reviewed until 2007. In 2007, the applicant commenced an Application. On consent, the final Order of Pugsley J. dated June 15, 2007 (the “2007 Order”) settled all custody and child support issues at that time. This trial came before me as a result of the applicant’s Motion to Change the 2007 Order.

[3] In her Motion to Change, the applicant requested an order that: the respondent contribute his reasonable share (plus interest) to K’s post-secondary education for a concurrent six year degree program at Brock University (and that he pay his contribution in full by September 1st each year); the respondent provide the applicant with financial disclosure every year that K is attending post-secondary education; the respondent and applicant provide each other with their email addresses to facilitate the sharing of financial and education information; the respondent pay the applicant retroactive arrears of child support from 2008 to present; costs for both the failed negotiations prior to her bringing the motion and for costs associated with the motion.

[4] The respondent served and filed a Response to Motion to Change. He disagrees with all claims made by the applicant. He is requesting an order terminating all child support payable, effective November 2017. He says he does not want to be paid back for any of the support he paid after November 2017. He denies the applicant’s claim for any retroactive child support and for any further contribution to K’s post-secondary education costs beyond the four years she has already completed. If the court does not terminate child support effective November 2017, the respondent asks for an order that gives him an “end date” for the child support.

[5] The main issues that I must decide are as follows:

a. Should the respondent be ordered to pay a retroactive increase in child support to the applicant, and if so, how much and for how far back in time?

b. What is the respondent’s reasonable contribution for K’s post-secondary education costs and when should it end?

c. When should the respondent stop paying any child support for K?

Decision

[6] I am partially granting the applicant’s request for the respondent to pay retroactive child support. I am also granting the applicant’s request for the respondent’s reasonable proportional contribution to K’s post-secondary education costs for a four-year degree. I am granting the respondent’s request to terminate ongoing child support and to terminate his obligation to contribute for the two additional years of K’s post-secondary education.

Analysis

[7] Pursuant to the Family Law Act, R.S.O. 1990, c. F.3, every parent has an obligation to support their children. Section 31 reads as follows:

31. OBLIGATION OF PARENT TO SUPPORT CHILD – (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-rime program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of is or her parents.

(2) IDEM – The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.

Retroactive Child Support

[8] One of the primary issues to be considered is whether this is an appropriate case for the court to award a retroactive increase in child support.

[9] Paragraphs 3 and 4 of the 2007 Order set out the child support to be paid by the respondent to the applicant. The 2007 Order has never been varied and contains no terms regarding contribution to s. 7 expenses, post-secondary expenses or requiring annual disclosure of income. The relevant paragraphs for the Motion to Change read as follows:

3. The Respondent shall pay child support to the Applicant, Heather Davies, for the support of the child, K, born November 30, 1999, in the amount of $418.00 per month, commencing January 1, 2007, based upon the Respondent’s annual income of $45,315.00.

4. Child support shall be payable by the Respondent until:

a. The child no longer resides with the Applicant;

b. The child turns 18 and is no longer enrolled in a full-time program of education;

c. The child becomes self-supporting;

d. The child obtains one post-secondary degree or diploma; or,

e. The child marries.

[10] The respondent submits that the applicant is not entitled to any retroactive child support for a few different reasons. Firstly, he alleges that the child did not actually reside in the applicant’s care. He says that she resided in the care of her maternal grandparents. Secondly, he says that he has paid the applicant child support consistently prior to the 2007 Order and afterwards. Thirdly, the respondent says that it will be a hardship for him to pay retroactive child support.

[11] It is an undisputed fact that the respondent and child never had a relationship. This fact is not significantly relevant to this matter, however, I mention it only to address the respondent’s allegation that the child was not living in the applicant’s care. I gave little to no weight to the respondent’s allegation and evidence on this issue. This allegation is irrelevant to the respondent’s responsibility to support K. The respondent admits that he has never had a relationship with K and that he agreed to have “no personal contact or sharing of information” with the applicant. I therefore find it unbelievable that he had any credible knowledge of the actual living situation of the applicant and K. In my view, he threw this allegation into the trial in an attempt to deflect responsibility and paint the applicant in a negative light. During the trial, the respondent repeatedly criticized and/or questioned the applicant over some of her life and/or parenting choices. I am not going to repeat them here. However, I wish to briefly share that the court found the respondent’s criticisms of the applicant’s parenting style and life choices to be completely irrelevant and unhelpful to this matter.

[12] Regarding the respondent’s compliance with the court ordered child support, the respondent feels that he should be commended for paying the court ordered amount, not punished. He says that he has contributed to the support of K “to the standard of the Child Support Guidelines and the court order.” The respondent says that he has “taken no action” and “all I have done is paid” so he should not be punished for this by being ordered to pay retroactive child support. He says that never provided any income information to the applicant because it was never requested.

[13] The court agrees that the respondent should not be “punished” for paying the court ordered amount of child support. However, child support is the right of the child. The court has a duty and responsibility to the child to ensure that the Child Support Guidelines are followed. Although the respondent paid the court ordered amount, the respondent knew his annual income was higher than $45,315 for most years following the final 2007 Order.[^1] He further knew that child support was/is based upon his income. He never paid a dime more than the court ordered amount. He never disclosed anything about his income until the applicant broached the subject.

[14] In my view, it should not be viewed as a “punishment” to be held accountable and be responsible for the children that we bring into the world. Raising and supporting children is much more than just a financial responsibility and it should be viewed as a privilege and not a punishment. In my view, complying with a court order and paying the Guideline level of child support is the absolute minimum a parent can do to be responsible for a child. The respondent should not expect to be commended for doing the minimum.

[15] In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 (“D.B.S.”) Bastarache J. determined that a payor, who was in good standing in his payment of child support, was presumptively not subject to a retroactive variation of child support because such retroactive awards “disturb the certainty that a payor parent has come to expect.” If this was all that needed to be considered when determining the issue of retroactive child support, then the applicant would not be successful in her claim. This is because in this case, the respondent diligently followed the 2007 Order and paid the monthly child support.

[16] In the case Zomparelli v. Conforti, 2018 ONSC 610 McDermot J. summarized the four considerations used to determine whether retroactive child support should be awarded as set out in D.B.S. At paragraph 51, he wrote:

a. The court must address the reason for the delay in bringing the proceedings for retroactive child support. The party seeking retroactive child support must explain his or her delay;

b. The court must inquire as to the conduct of the payor parent. Is there blameworthy conduct?

c. The court must determine the past and present circumstances of the children. The court must determine the needs of the children when the support would have been payable.

d. The court must finally determine whether payment of retroactive child support would cause hardship to the payor parent.

[17] In addition, although the recent Supreme Court of Canada case, Colucci v. Colucci, 2021 SCC 24 (“Colucci”) was a retroactive application to reduce support, the Court set out the present framework that should be applied for retroactive applications to increase support at paragraph 114 as follows:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

Reason for Delay and Conduct of the Payor Parent

[18] Based on all of the above, when determining whether there should be a retroactive award of child support, absent blameworthy conduct, we either use the date of effective notice (i.e. when the subject was broached) or three years prior to the date the motion to change was commenced. The date for the retroactive child support would be whichever is the latest or came last.

[19] The respondent has never provided the applicant with any income information voluntarily after the 2007 Order. The respondent says that the applicant never sought him out to request financial disclosure or a change in the support until April 2017. He argues that he followed the court Order and that he should not be punished for doing so. The respondent admitted in court that he knew that the amount of child support he paid was determined by his income. He said he knew this back in 2007 when the final Order was made based upon his 2006 income. The respondent also admitted that his income rose after 2007. He further stated that he is the sole income earner in his family and that even though his income was higher, he did not have extra money to pay more child support.

[20] The applicant admits that she did not request a term requiring annual disclosure of income information in the 2007 Order of Pugsley J. She says she did not know this was an option and this was an omission by her lawyer. She says that she had no idea about being entitled to request disclosure until approximately 2012. She says she was too overwhelmed with what was going on in her life at that time (being primarily a single mother and going through relationship difficulties and a separation). For this reason, she did not have the emotional or financial strength to pursue the respondent for a change in child support.

[21] The court understands that it could not have been easy to be a single parent for most of K’s life. It is extremely commendable that the applicant went to school to better her work prospects and to support K. The court also understands that the applicant went through a couple of rough relationships that took a toll on her emotionally. Despite this, I find that her evidence was insufficient to adequately excuse her delay in bringing this Motion to Change in 2017 to succeed in her claim for an increase in child support retroactive to 2008.

[22] At the time of trial, both parties admitted they were not aware of, nor had complied with, s. 24.1 of the Child Support Guidelines which came into effect in 2010 as a result of O. Reg. 25/10. Section 24.1 reads as follows:

24.1 ANNUAL OBLIGATION TO PROVIDE INCOME INFORMATION – (1) Every person whose income or other financial information is used to determine the amount of an order for the support of a child shall, no later than 30 days after the anniversary of the date on which the order was made in every year in which the child is a child within the meaning of this Regulation, provide every party to the order with the following, unless the parties have agreed otherwise:

1. For the most recent taxation year, a copy of the person’s,

i. personal income tax return, including any materials that were filed with the return, and

ii. notice of assessment and, if any, notice of reassessment.

2. As applicable, any current information in writing about,

i. the status and amount of any expenses included in the order pursuant to subsection 7 (1), and

ii. any loan, scholarship or bursaries the child has received or will receive in the coming year that affect or will affect the expenses referred to in subparagraph i.

(2) NOTICES OF ASSESSMENT – If the person has not received his or her notice to assessment or notice of reassessment for the most recent taxation year by the date referred to in subsection (1), the person shall provide every party to the order with a copy of the notice as soon as possible after the person receives the notice.

(3) CHANGE IN ADDRESS – If the address at which a party receives documents changes, the party shall, at least 30 days before the next anniversary of the date on which the order was made, give notice of his or her updated address information to every person required to provide documents and information under subsection (1).

(4) FAILURE TO COMPLY – If a person require to provide a document or information under this section fails to do so, a court may, on application by the party who did not receive the document or information, make one or more of the following orders:

1. An order finding the person to be in contempt of court.

2. An order awarding costs in favour of the applicant up to an amount that fully compensates the applicant for all costs incurred in the proceedings.

3. An order requiring the person to provide the document or information to,

i. the court,

ii. the applicant, and

iii. any other party to whom the person did not provide the document or information when required to do so.

(5) EXCEPTION – Subsection (4) does not apply if the person who fails to provide the document of information is a child who is not a party to the order for support.

(6) TRANSITION – In the case of an order to which subsection (1) applies that is in existence on the day section 5 of Ontario Regulation 25/10 comes into force, if the first date by which a person must provide documents and information under that subsection occurs less than six months after the day on which the person provided documents and information under section 25, the persons is not required to provide documents and information under subsection (1) in the first year in which he or she would otherwise have been required to provide them.

[O. Reg. 25/10, s. 6]

[23] The applicant’s Motion to Change was issued December 5, 2017 after negotiations between the parties that commenced in the early spring of that year had broken down. It is undisputed that the applicant hired a lawyer and made a request for financial disclosure by a letter dated April 3, 2017. The applicant says she also requested financial disclosure from the respondent in 2016; however, the respondent denies this. In my view, the most clear and undisputed notice was affected when the applicant’s initial request for financial disclosure was made through counsel on April 3, 2017.

[24] The parties attempted mediation in early 2018, which was unsuccessful. Despite numerous conferences, the parties were unable to resolve the issues forcing this matter to go to trial. The respondent did not provide the applicant or the court with his income tax returns going back to 2014 until the day of trial.

[25] While it is true that the respondent complied with the 2007 Order and the applicant did not seek full financial disclosure from the respondent until approximately 2017, the respondent knew all along that his income changed over the years and was aware that the amount of child support he paid was supposed to be in accordance with his income. The reason this is very clear to the court is by the respondent’s own words and actions. He is financially sophisticated enough to draft and file his own income tax returns. He never sought the applicant out about a change in child support until his income was negatively affected by the loss of a job in February 2016.[^2] He did not provide the applicant with his financial disclosure at that time. The respondent provided only partial financial disclosure when it was requested formally in the spring of 2017.

[26] The respondent’s evidence is that he did not know where the applicant was and/or that he did not communicate with her out of respect for her wishes. He says that the requirement for annual financial disclosure was not included in the 2007 Order, but it was always available (upon request). He says it was never requested and that is not his fault. Despite this, the respondent did seek the applicant out when he lost his job. In my view, he found her quite easily through contacting her father.

[27] The respondent sought the applicant out regarding a change in his income when it was negative, but not when it was positive, i.e. he sought her out in February 2016 when he lost his job and thought his child support should be reduced or terminated. The applicant says she asked for financial disclosure at that time, but he refused to provide it. Instead, he told her that he found another job and it was the same income, so he just continued paying in accordance with the 2007 Order. This fact was undisputed by the respondent and clearly showed the court that he was untruthful with the applicant about his income. In 2016 his income was actually $63,226 (not $45,315). Unfortunately, after that communication in February 2016, the applicant continued to do nothing about the child support. Further, aside from paying the same child support amount, the respondent continued to do nothing as well.

[28] In 2017 the applicant hired a lawyer to address the ongoing and retroactive child support and post-secondary issues. Despite requests for disclosure, the respondent did not provide full financial disclosure for the years 2017, 2018, 2019 or 2020 – only Notices of Assessment. Further, in my view, the respondent muddied the waters and delayed negotiations by suddenly requesting paternity testing again and expressing a desire to make contact with K so that he could have a relationship with her.

[29] With respect to the questions of delay and blameworthy conduct, based on all the above, I find there was delay on behalf of the applicant and there was blameworthy conduct on behalf of the respondent. I find there was blame worthy conduct by the respondent regarding his lack of financial disclosure, swearing false financial statements and never disclosing any of the positive changes in his income when he knew that the amount of child support he paid was set in accordance with his income. I find there was delay with respect to the applicant seeking a change in the child support by waiting until 2017 to formally broach the subject.

[30] Therefore, I am using my discretion to choose what in my view is a fair retroactive date for the increase in child support payable by the respondent to the applicant. I will not order an increase in the child support retroactive to 2008; however, I will order it to be retroactive to three years prior to the applicant’s effective notice, which in this case is three years prior to 2017 (when the applicant’s lawyer wrote her first letter to the respondent).

[31] For the reasons set out above, I am partially granting the applicant’s request for retroactive child support. I will not order that it go back any further than January 2014 (three years prior to her official request) when effective notice was provided through her counsel in 2017. I am not granting the applicant’s request to order the respondent to pay retroactive child support back to 2008.

[32] The applicant’s calculations for retroactive child support are found at Appendix “G” and Appendix “I” of her sworn affidavit dated March 29, 2021. I agree and accept the calculations provided by the applicant on the issue of retroactive child support going back to 2014. She provided a detailed quantification of the child support amounts paid by the respondent; the child support amount owed based on the CSG’s and the respondent’s actual income each year; and the difference between those amounts showing the deficits and credits for each year. The applicant’s calculations for retroactive increase in child support for 2014, 2015 and 2016 totalling $9,813.12 are found at Appendix “G” of her sworn affidavit dated March 29, 2021. The applicant’s calculations for retroactive increase in child support for 2017, 2018, 2019 and 2020 totalling $2,632.32 are found at Appendix “I” of her sworn affidavit dated March 29, 2021.

Respondent’s retroactive contribution to K’s post-secondary education costs

[33] K has been attending university since 2017 in a concurrent program for her Bachelor of Arts and Education. She intends to become a teacher and at the end of six years of study she will graduate having earned two degrees, namely a B.A. and B.Ed. The respondent says that he has already contributed more than his reasonable pro-rated share to K’s post-secondary expenses by continuing to pay the court ordered $418 per month for four years of the six-year concurrent program. He relies upon paragraph 4(d) of the 2007 Order that states child support ends when “the child obtains one post-secondary degree or diploma.”

[34] The applicant provided the court with calculations regarding retroactive contribution to K’s post-secondary costs. These are found at Appendix “H” of her sworn affidavit dated March 29, 2021. She provided a detailed quantification of the post-secondary costs; the amounts already paid by the respondent; K’s contributions; and the calculation of both parents pro-rated shares based on their incomes.

[35] I agree and accept the calculations provided by the applicant. I find the post-secondary expenses to be reasonable and fair. The applicant’s calculations for the respondent’s arrears of post-secondary expenses total $3,963.70 for four years of K’s post-secondary education.

Respondent’s ongoing child support and contribution to K’s post-secondary education costs

[36] The respondent denies that K is entitled to be supported for the last two years of her program. In his submissions, he relied on outdated case law from British Columbia and made comments about K’s academic performance and choices. Lastly, he made submissions that K was not entitled to further support because she had “unilaterally terminated a relationship from the parent whom support is sought.” In my view, nothing could be further from the truth.

[37] When the applicant requested financial disclosure from the respondent, the respondent requested contact information for K so he could initiate some communication. Based on the submissions of both parties and upon review of the email correspondence between the respondent and K, it is clear to the court that K is a mature, intelligent, hardworking, resilient and sensitive young woman. In my view, K has shown a high level of maturity and restraint. Although the applicant did not show much support or encouragement for a father/daughter relationship, it was the respondent and has always been the respondent who made the clear choice not to pursue or continue a relationship with K. In my view, the timing and intentions of the proposed formation of a parent/child relationship were questionable and was only offered on the respondent’s terms and for his interest – not in the best interests of K. I do not find K to have “unilaterally terminated” a relationship with the respondent.

[38] As stated above, according to paragraph 4(d) of the 2007 Order, the parties came to an agreement and the court ordered that the respondent shall pay child support until “the child obtains one post-secondary degree or diploma.” No one appealed this term and neither party requested a change to that paragraph. Usually, one post-secondary degree or diploma takes anywhere from two to four years to complete.

[39] There are many cases where the court has ordered child support and/or continued contribution to post-secondary expenses after the first degree. However, these are usually cases where the incomes of the parties are higher, and/or the parties always intended to support their children into graduate school. In those cases, this issue is usually contemplated and negotiated into the agreement or court order.

[40] In this case, we have two parties with modest incomes. We have a court order that already clearly contemplates child support ending after the child “obtains one post-secondary degree or diploma.” K’s program is concurrent, in that she will graduate with two degrees after completing six years of concurrent education. In my view, “first degree” means after K completed the requirements for her first degree – or in this case, after her completion of four years of post-secondary education. Lastly, the respondent is married, and he has two younger children that he also supports. After paying the applicant all the retroactive amounts that he owes, I find it unreasonable to order the respondent to pay the applicant for any further contribution to post-secondary education costs. In my view, after paying the retroactive support order, the respondent will have fulfilled his child support responsibility.

[41] For these reasons, I am terminating the respondent’s requirement to pay child support or make any further contribution to K’s post-secondary education costs after the completion of the first degree as set out in the 2007 Order, which in this case I find to be April 30, 2021.

Respondent’s Undue Hardship Claim

[42] Although I have found the respondent’s obligation to pay ongoing child support and contribute to K’s post-secondary education should be terminated as of April 30, 2021, the respondent still owes the applicant retroactive child support and retroactive contributions to K’s post-secondary expenses. The respondent made submissions pursuant to s. 10(2)(d) of the Child Support Guidelines that he and his family would suffer undue hardship if he was ordered to pay retroactive or ongoing child support and/or additional post-secondary education costs.

[43] The respondent completed the calculations as set out in Schedule II of the Ontario Child Support Guidelines. He used his income (after significant unproven deductions for meals, vehicle expenses and other expenses) and showed that based on his calculations his family income ratio was lower than the applicant’s. The respondent made submissions and gave evidence regarding his Standard of Living calculation and said that for every year calculated, his household income ratio is lower than the applicant’s.

[44] The respondent swore multiple financial statements wherein he indicated that he did not hold any interest in any real estate asset(s). Despite this, under oath during cross-examination, he confirmed that he and his wife purchased their family home at 177 Morrow Road in Peterborough in 2008 for $192,000. He testified that he and his wife and two children still reside in that home together. The respondent confirmed that there is no marriage contract between him and his wife that limits or effects his rights to the matrimonial home. He stated that although his name is on title jointly with his wife, he has “no financial interest” in the property. He explained that this was because his “wife paid off the mortgage.” He further stated under oath that the value of that property was still only $192,000 (14 years after purchasing the property for that exact price). When asked why he believed this to be the value, he stated that his MPAC assessment said it was so.

[45] The Standard of Living test is simply the starting point of the undue hardship analysis. Just because the payor’s household income ratio is lower than the recipients, that does not automatically prove a hardship claim. The fact that the respondent’s Standard of Living calculation (using his income with significant deductions – that were never proven or agreed to) shows that his household ratio income is lower than the applicant’s does not mean the court will find it is a hardship for him to pay Guideline support or to contribute to post-secondary costs. This is a discretionary issue.

[46] I found the respondent to be evasive and he lacked credibility when he gave evidence about his financial circumstances. The respondent refused to include the true value of his home on his financial statement. He admitted in court that he was on title with his wife, however, he refused to concede that he had any financial interest in this property. He advised the court that the home had no mortgage as it had been paid off previously. I find the fact that the respondent did not and would not include such a large asset in his financial disclosure made me question the entirety of his financial statements, financial disclosure and evidence on his Standard of Living test. I find that the respondent and his family have not suffered financially such that it was or is a hardship to pay Guideline level child support and/or to contribute to K’s post-secondary education costs.

[47] Neither of these parties appealed the 2007 Order or genuinely sought a change to it until 2017. In my view, although both parties have incomes and partners who contribute to the household expenses, neither of these parties would be characterized as “rich.” Both parties have experienced some financial challenges in the past.

[48] In my view, based upon the evidence provided and my findings above, the respondent’s undue hardship claim is dismissed. I find that he is not entitled to an order that he pay less than his proper child support amount pursuant to the Child Support Guidelines and he is not entitled to pay less than his proportionate share of K’s post-secondary costs.

[49] For the reasons set out above, Final Order to Go:

1. Ongoing child support payable by the respondent to the applicant shall terminate on April 30, 2021.

2. The respondent shall not be required to contribute any further for the child’s post-secondary costs after May 1, 2021.

3. The respondent shall pay the applicant retroactive child support for the years 2014, 2015 and 2016 in the amount of $9,813.12.

4. The respondent shall pay the applicant retroactive child support for the summer months of 2017, 2018, 2019, 2020 in the amount of $2,632.32.

5. The respondent shall pay the applicant retroactive contributions to post-secondary education costs for the school years 2017/2018, 2018/2019, 2019/2020, 2020/2021 in the amount of $3,963.70.

6. The total arrears owing by the respondent to the applicant is: $16,409.14. This amount shall be paid within 24 months at a rate of $685 per month commencing September 1, 2021 until fully paid. The respondent may accelerate payment of these arrears by making partial or full lump sum payment(s).

7. SDO to issue.

Costs

[50] Success of this trial has been mixed. Neither party is presumptively entitled to costs. Despite this, costs may be payable if one or both party’s delivered an offer to settle to the other side and believes that their offer to settle beats my Order (i.e. had the offer to settle been accepted, the other party would have been better off). Costs may also be payable if either party is found to have behaved unreasonably or in bad faith. If the parties cannot agree on costs, then I will accept their cost submissions in writing. I will receive written submissions on a seven-day turnaround, commencing with the applicant on or by July 19, 2021, followed by the respondent’s responding submissions on or by July 26, 2021, then the applicant’s reply submissions, if any, on or by August 3, 2021. Cost submissions shall be no more than two pages in length (12 pt. font size, regular 1-inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my judicial assistant at barriejudsec@ontario.ca. If no submissions are received by August 3, 2021, the issue of costs will be deemed to have been settled between the parties.

R.S. Jain J.

Date: July 9, 2021

[^1]: The respondent did not provide the applicant or the court with complete financial disclosure going back to 2008; however, he admitted in court that his income rose after 2007. In 2014 the respondent’s Notice of Assessment showed an income of $75,228. In 2015 the respondent’s Notice of Assessment showed an income of $83,914. In 2016 the respondent’s Notice of Assessment showed an income $63,226. In 2017 the respondent’s Notice of Assessment showed an income of $57,295. In 2018 the respondent’s Notice of Assessment showed an income of $58,631. In 2019 the respondent’s T4’s showed an income of $61,497. In 2020 the respondent’s T4’s showed an income of $62,008.

[^2]: Affidavit of the applicant dated March 29, 2021 at paras. 40-41 and oral testimony of both parties.