COURT FILE NO.: 13-1064

DATE: 2021/11/23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Hollie Anita Comfort

Applicant

– and –

Mark Benjamin Comfort

Respondent

Douglas Grenkie, for the Applicant

Respondent, Self-represented

HEARD: August 24, 2021, Brockville

DECISION ON MOTION to change CHILD SUPPORT AND PARENTING TIME

SOMJI J

Overview

[1] In January 2020, the applicant mother brought a motion to change the parenting plan and to obtain child support arrears dating back to January 2019. The father’s failure to provide financial disclosure to the mother notwithstanding multiple court orders has delayed resolution and hearing of this matter. The matter proceeded to trial by way of affidavit on August 24, 2021. The father was self-represented.

[2] Some of the issues originally raised by the mother were resolved on consent. However, the outstanding issues on this motion are:

1. What parenting plan is in the children’s best interests? In particular,

a. Who should have final decision making responsibility for the children on matters of education and health?

b. Where should the children primarily reside? and

c. What parenting time should the father have and under what conditions?

2. Does the father owe child support arrears for the years 2019, 2020, and 2021 and what is the child support payable going forward?

3. Should the father be required to pay for certain s. 7 expenses over and above child support, and if so, which expenses?

Evidence

[3] The father was given an opportunity following the motion hearing to file a copy of his 2018, 2019, and 2020, income tax returns and notices of assessment which he did on August 25, 2021. The court forwarded a copy to mother’s counsel who provided an email adjusting the request for arrears based on the tax returns.

[4] I have relied on the following documents for this motion:

A. Mother’s affidavits dated July 15, 2021 and August 9, 2021 and exhibits;

B. Mother’s financial statement July 15, 2021;

C. Factum of the mother dated July 16, 2021, and email adjusting arrears dated September 7, 2021;

D. Chart prepared by counsel of the requests for financial disclosure from the father;

E. Father’s unsigned and undated response to Motion to Change; and

F. Father’s Notices of assessment for tax years 2018, 2019, and 2020.

Background Facts and Procedural History

[5] The mother and father were married in 2008 and separated in April 2017. They have two children C.C. who is eight and A.C. who is five. Following separation, the mother brought an application to address a number of issues including child support. On November 15, 2017, Justice Abrams issued a final order granting joint custody, primary residence with the mother, and parenting time for the father on the weekends. In addition, Justice Abrams made an order for child support in the amount of $400/month based on the father’s income at the time of $35,000. The father was also ordered to provide annual updates on his income for 2017 and forward.

[6] The father failed to provide the mother with any financial disclosure relating to his income prompting the mother by October 3, 2018 to bring a Motion to Change the Final Order of Justice Abrams. Since that time, there have been several court orders requiring the father to provide financial disclosure and providing him extensions of time to do so. Counsel for the mother has also repeatedly requested financial disclosure with no success. On May 31, 2021, Justice Johnson ordered that the matter would proceed to trial by way of affidavits and with factums on August 24, 2021. On that date, the father requested a further adjournment which I denied. The matter proceeded to a hearing.

[7] During the August 24th hearing, certain issues were resolved. The father agreed to provide his income tax returns for the years 2018, 2019, and 2020. The income tax returns and notices of assessment were subsequently provided to the court on August 26, 2021

Matter resolved on consent:

[8] The mother understands the father works for a mining company, but knows little else about his employment. The father advised her that he works in Crysler, Ontario. He also spends 3-4 nights in Cornwall at 321 Water Street. The father T4's says his address is 10642 Cook Road, P.O. Box 129, Brinston, ON. The father also purports to live at 33 Lakeshore Drive, Apt 2, in Morrisburg.

[9] The mother requested the court to order that the father advise her of where he and the children will be residing during his parenting time and to provide the contact information. The father does not oppose the condition. There will be an order on consent of the parties that:

A. Both parties agree to provide each other with contact information on the children’s whereabouts when they are in their care.

Issue 1: Decision-Making, Primary Residence, and Parenting Time

Decision-making responsibility

[10] Justice Abrams ordered that custody of the children will be shared by both parents. Since that 2017 Order was issued, there have been legislative changes resulting in new terminology. For example, custody is now referred to as decision-making responsibility. The mother seeks to amend Justice Abrams order to allow her to have final decision-making responsibility on the children’s schooling and health. The mother agrees to consult with the father on these issues, but if a decision cannot be reached, she wishes to have final decision making authority with the father retaining the right to apply to the court should he be unsatisfied. The mother is agreeable to joint decision-making responsibility on all other issues. Her position was expressed to the father in an email dated September 1, 2020.

[11] The father indicated in his response to the motion to change that he would like sole decision-making responsibility for the children. However, in another email to the mother’s counsel dated August 31, 2020, he indicated that he was agreeable to “shared custody”.

[12] The father alleges he is concerned about the mother’s ability to make decisions given her ongoing mental health issues, her failure to ensure the children are properly vaccinated, and the inadequacy of her parenting. More particularly, the father alleges the mother neglected to take C.C. to the hospital when he could not stand, failed to ensure C.C. is vaccinated, did not attend a parent teacher interview where he was told that C.C. needed footwear, and failed to teach his boys basic functions like going to the toilet, dressing themselves, or how to eat with utensils.

[13] The mother disagrees with the father’s characterization of her mental health and his allegations of improper parenting. The mother acknowledges she has been diagnosed with bipolar disorder which was previously untreated and resulted in her committing a horrific fire for which she is clearly remorseful. She is also deeply conscious of the possibility that her children could be bullied because of her past conduct and for this reason does not want her children going to school in Morrisburg where the fire took place. However, the mother was medically treated following the incident. Since 2009, she has been taking medications regularly to manage her mental health which she lists in her affidavit. She states that since her separation with the father, she has had no relapses.

[14] The mother explains that the Children’s Aid Society (“CAS”) became involved in 2017 because she called them for help. The psychiatrist at the hospital recommended to her that she end her marriage with the father because of alleged abuse. When the mother announced she was leaving the marriage, she reports that things became chaotic. She sought CAS’s help because she was worried about everyone’s safety.

[15] With respect to the mother’s choice to homeschool and delay C.C. going to kindergarten, she explains that he is immuno-compromised as a result of an ADA2 deficiency. Therefore, it has been recommended that he not have certain vaccinations. The mother filed a letter from Dr. Stephanie Levac of CHEO dated October 8, 2020, that states that C.C. has ADA2 deficiency and “is currently being treated with immunosuppressive therapy and as a result, all live vaccinations such as Varicella, Measles, Mumps, Rubella, intra-nasal influence, etc. are contraindicated for C.C..” It is unclear to me if the vaccine for COVID-19 is contraindicated, but nonetheless, it is clear from this email that the mother is attending to C.C.’s medical needs and has obtained medical opinions on C.C.’s ability to be vaccinated.

[16] The mother claims that because of C.C.’s condition, she has been cautious about vaccinating her younger child A.C. She did arrange to have genetic testing done. Her concerns about A.C.’s response to vaccinations has not prevented her from enrolling both boys in school. Once the pandemic subsides, the mother expects the boys to travel together on the school bus and she will be there for pick up and drop off.

[17] While the father takes issue with the mother’s refusal to have A.C. vaccinated, he has not provided any evidence that he has attended A.C.’s medical appointments or sought medical opinions on whether A.C. is at risk for vaccinations. The mother also provides an example of how in April 2018, the father did not attend the hospital while C.C. was there. She claims there were other incidents where the children have been unwell and the father would not take them to the hospital and instead, wait to return them to her so she could take them.

[18] The mother states she also has concerns about the father’s parenting. She alleges he is not tolerant of A.C.’s desire to play with dolls and wear clothing and shoes that are purple and pink. She claims A.C. has expressed an interest in being a transgender child and she is supportive of his development. She states she has heard from the children that the father sometimes slaps them.

[19] The governing test for determining decision-making responsibility, primary residence, and parenting time is the child’s best interests.: Children’s Law Reform Act, RSO 1990, c C.12, s 24, as amended SO 2020, c 25, Sched 2, s 6 (“CLRA”). These provisions endorse a child-centered approach in determining parenting orders: Young v Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3 at pp 62-63.

[20] The best interests of the child framework requires primarily consideration of the children’s physical, emotional and psychological safety, security and well-being: CLRA, ss 24(1) and (2). However, s. 24(3) also lists additional factors that must also be considered: CLRA, ss 24(3).

[21] Sections 24(1) and 24(2) of the CLRA state as follows:

Best interests of the child

24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section. 2020, c. 25, Sched. 1, s. 6.

Primary consideration

(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being. 2020, c. 25, Sched. 1, s. 6.

Factors

(3) Factors related to the circumstances of a child include,

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child. 2020, c. 25, Sched. 1, s. 6.

[22] The courts have declined to order joint decision-making responsibility in circumstances where it has been demonstrated that the relationship between the parties is acrimonious and communication is poor: L.B. v P.E., 2021 ONCJ 114.

[23] I find that the parental relationship in this case is not suited for joint decision-making for the following reasons. First, the father failed to provide the mother with any financial disclosure since 2017 despite court ordered to do so annually. This necessitated the Motion to Change and an application for support arrears. Even then, it has taken almost 3 years for the father to finally provide his Notices of Assessment to counsel and the court. One of the addresses where the father purports to reside is 33 Lakeshore Drive, Apt 2, in Morrisburg, a kilometer away from the offices of counsel for the mother located on Main Street in the Morrisburg Plaza. As the mother points out, the father could have easily walked to her counsel’s office and provided the copies of the documents requested by him and ordered by the court. I find the father has been unwilling to cooperate with the mother on key issues such as financial support of the children. I find that there is high risk that he will continue to be uncooperative with mother and delay important decisions involving the well-being of the children in the future.

[24] Second, the father has shown little regard for the mother’s views. The mother lives in Kemptville. The father appears to reside at multiple locations and has different addresses for work and residence in Morrisburg and Cornwall. The father stated at the motion hearing that he sometimes stays in Cornwall and at other times in Morrisburg. He sometimes takes the children to their grandmother’s place on the weekends. However, until the date of the motion hearing, it has been unclear to the mother where the children are when they are with him. The mother has repeatedly asked the father to let her know where the children will be and with whom they will be residing during his parenting time. He has refused even this simple courtesy demonstrating his utter lack of regard for her wishes and concerns.

[25] Third, the mother stated both during the hearing and in her affidavit that the father does not respect her and that she is intimidated by him. As explained by Justice Sherr in L.B. v P.E., for joint-decision-making responsibility to be a viable option there must be some modicum of trust and respect between the parties: para 104. I find the father has little respect for the mother. In contrast, the mother has facilitated and fostered the father’s relationship with the children notwithstanding her own concerns about his parenting. I find that if there is a condition requiring the mother to consult on decisions with the father, she will abide by that condition. I do not find the father would necessarily do the same.

[26] The onus is on the moving party on a motion to change to provide evidence of why the status quo should be altered. I find the mother has provided sufficient evidence to demonstrate that the father is not cooperative and the dynamics of their relationship are such that communication with him is challenging. As the children get older, decisions will have to be made around schooling and health, particularly since C.C. has special needs. I find that in these circumstances, it is in the best interests of the children for the mother, upon reasonable consultation with the father, to have final decision-making authority on issues of education and health. There will be an order that the mother will have final decision making authority on issues of education and health. There will be an order that the parents will have joint decision-making on all other issues.

[27] To ensure that the father has the information from education and medical professionals involved in the children’s lives, there will be an order that the mother will inform the father of all medical, educational, and dental appointments and the father shall be able to attend all such appointments should he wish to.

Primary residence and parenting time

[28] The mother is agreeable to shared parenting but with the children having their primary residence with her and the father having parenting time on the weekends.

[29] I find it is in the best interests of the children to have shared parenting with primary residency with the mother and parenting time with the father on weekends as has been the practice for the following reasons.

Sections 24(3)(a) and (d) CLRA: history and stability of the child - Should the status quo be maintained?

[30] Two of the factors for consideration in determining what is in the best interests of the children are the history of care and the need for ongoing stability: CLRA, ss 24(3)(d) and (a). In this case, the mother has been the primary caregiver of the children since birth. The children have resided primarily with her and the father has had parenting time on the weekends. The mother has attended to the children’s medical and developmental needs.

[31] While the father criticizes the mother’s parenting, he has not filed any evidence from the school, the Society, or medical institutions in support of his position. Furthermore, the father’s response to the motion to change does not address his position on primary residency and parenting time. To date, the father has had parenting time every weekend from Friday at 6 pm until Sunday between 4:00 pm and 6:00 pm with an option to keep the children on Monday if it is a holiday or PD day. If the father is seeking an additional parenting time or an alternative parenting schedule, he has not provided any proposal of what that would look like.

[32] In addition, the father resides in Morrisburg and works full-time. The children are presently homeschooling due to the pandemic and C.C.’s compromised immune system. If the children were to reside with the father, it is unclear what the schooling arrangements would be. Even if it was safe for C.C. to attend school in-person, the children would have to switch schools requiring a further adjustment.

[33] I find that the history and stability of care for the children favors continuation of the status quo with the children residing with the mother and the father having parenting time on the weekends.

Section 24(3)(i) CLRA: Ability of parents to communicate and co-operate with conditions of a court order

[34] Section 24(3)(i) of the CLRA requires the court to consider the ability and willingness of each person in respect of whom the court order would apply to communicate and co-operate with one another on matters affecting the child. As discussed earlier, the father has not been cooperative with the mother on financial matters or even in communicating his whereabouts when he has the children. He did not abide by Justice Abram’s order to provide annual financial disclosure nor any further court orders to provide disclosure since the start of this application. The mother, on the other hand, continues to foster the father’s relationship with the children. She is willing to consult with him on medical and educational issues as she has done in the past. I find that the mother is more likely to communicate and cooperate with the conditions of a court order and this factor favors maintaining the current parenting regime.

Sections 24(3)(a), (b) and (h) CLRA: Parent’s relationship with child and ability to care for and meet the needs of the child

[35] Section 24(3)(b) requires me to consider the nature and strength of the children’s relationship with each parent, as well as the relationship to siblings and grandparents and any other person who plays an important role in the child’s life.

[36] Section 24(3)(a) requires consideration of the needs of the child while s. 24(3)(h) requires consideration of the ability and willingness of each parent to care for and meet those needs. I will address these three factors collectively.

[37] In this case, C.C. has special needs, both medically and intellectually. The mother is sensitive to those needs. The mother is also supportive of A.C.’s development and the manner in which he wishes to express himself. The mother states in her affidavit that “the three of us have a happy household”. The mother also has the continued support of her own father who she references in her affidavit as helping her with tasks in the home.

[38] The mother acknowledges the importance of the father’s presence in the boys’ lives, but has been frustrated by the father’s lack of sensitivity to their individual needs. She provides an example of how on July 18, 2021, the father cut A.C.’s hair even though he wanted to grow it out. A.C. often wears wigs at home and school. She referenced another incident on July 31, 2021, where the father returned C.C. home because he wanted to teach him a lesson for acting up. C.C. was not allowed to partake in the activities the father had planned. The mother asked the father to come get him on Sunday as he was missing his dad, but he refused to do so. She also expressed concerns about the father’s discipline of the children. On October 25, 2020, C.C. reported to her that the father had slapped him for taking A.C.’s Lego piece.

[39] The father does not address his relationship with his children. Most of his Response to the Motion to Change is focused on criticism of the mother and the shortcomings of the children. As a result, it is difficult to discern the nature of his relationship with the boys. On the other hand, it is clear the father loves and cares for his boys. While there have been some weekends where he has not taken the kids due to work commitments, he has been otherwise regular in his parenting time. Furthermore, the distance between Kemptville and Morrisburg is approximately 100 kms, and since the mother does not drive, the father has been responsible for all the travel to pick up and drop off the boys.

[40] I find the mother has been the primary caregiver. She deals with the boys’ day to day affairs and has been able to meet their emotional and physical needs. These factors favour maintaining the current parenting regime.

Sections 24(g) and (f) CLRA: Plans of care and the child’s cultural, linguistic, religious and spiritual upbringing and heritage

[41] The court must also consider the need to maintain the children’s cultural, religious, and linguistic upbringing as well as the respective plans of care put forth by each parent: CLRA, s 24(3)(f) and (g).

[42] The father has not put forth a plan of care as to where the children will reside, what school they would attend, and who would care for them if they were not able to attend school.

[43] The mother has indicated that her plan is to continue to have the children reside primarily with her in Kemptville and to continue in their present school. In addition, she has identified her concerns about the children being bullied should they be relocated and required to attend school in Morrisburg where the fire occurred. Furthermore, it is very important to her to have the children remain at Holy Cross school in Kemptville where religious education is part of the school curriculum which she believes will provide the children with good values.

[44] In the absence of an alternative plan of care form the father, I find the mother’s plan of continued care is in the best interests of the children.

Section 24(e): children’s views

[45] The CLRA requires the court to consider the children’s views and preferences, giving due weight to their age and maturity, unless they cannot be ascertained. In this case, no request was made to engage the Office of the Children’s Lawyer to determine the wishes of the children.

Sections 24(3)(j) and 24(4) and (5): Consideration of family violence

[46] CAS was involved with this family. However, neither party has filed any reports from the agency. The mother alleges there was domestic abuse by the father towards her and that is why she left the marriage. The mother alleges concerns about the father’s discipline of the children. She provided an email written to her counsel dated October 25, 2020, wherein she alleges that her eldest son C.C. reported that the father had slapped him. The incident was over a conflict between the two boys and a Lego piece.

[47] I find I do not have sufficient information to make a finding that there is family violence when the children are with the father. I find this factor is neutral in determining the children’s parenting regime. However, there will be an order that the father not engage in any physical discipline of the boys while they are in his care. If the father’s behavior is reported to continue and the mother has concerns that the children are at risk of harm while with the father, she is encouraged to contact CAS.

[48] I find it is in the bests interests of the child to have shared parenting with the children having their primary residence with the mother in Kemptville and the father having parenting time on the weekends in accordance with the existing schedule.

Mother’s Request for additional terms and conditions

[49] The mother learned that the father took the children for flu shots. She requests a clause preventing him from vaccinating the children. Given C.C.’s medical condition as described in the letter from Dr. Levac, the mother’s request is reasonable. There will be an order to that effect.

[50] It was reported to the mother that the Family Responsibility Office suspended the father’s driver’s licence due to child support arrears. The father was arrested on January 3, 2020, and his car was towed. This matter appears to have resolved itself. The father is well aware the law requires him to have a driver’s licence and the consequent effects of driving without a licence. I do not find it necessary to impose a condition requiring the father to show the mother proof of valid driver’s license each time he picks up the children.

[51] The mother requests a condition that the children not be in the presence of the father’s girlfriend April Abitong. She takes issue with the children referring to the father’s girlfriend as mom or mommy. I do not find there is sufficient evidence upon which to order the clause requested.

Order re parenting plan

[52] There will be an Order as follows with respect to the parenting plan:

B. The Applicant mother shall consult with the Respondent father regarding all matters concerning each child's health care matters. If the parties cannot agree on health care matters for each child, the Applicant shall make the final decision, save the Respondent having the right to apply to the Court regarding same.

C. The Applicant mother shall consult with the Respondent father regarding all matters concerning each child's educational program, including without limiting, the school selected and the programs selected, but if the parties cannot agree on educational matter for each child, the Applicant shall make the final decision save the Respondent having the right to apply to the Court regarding same.

D. The mother and father shall share the parenting of the children with the primary residence being with the Applicant mother.

E. The children shall reside with the mother and be parented by her from Sunday at 6:00 p.m. to Friday at 6:00 p.m. at her residence, during the school year from the months of September to end of June.

F. The father will parent the children from Friday at 6:00 p.m., until Sunday at 6:00 p.m. every week, but parenting time may be extended to Monday or any non-school day, including Christmas time, as the parties may agree in writing.

G. During the months from July 1, 2021 to August 31, 2021, and every year thereafter, the children shall be parented by each parent on a rotating weekly basis, commencing with the father on July 1, 2021.

H. The parties will each have four weeks with the children between the period of July 1st and after Labour Day (September) and will negotiate by June 1st of each year what those four weeks will be. Given the father’s flexible and shift work schedule, the four weeks may be variable throughout the summer.

I. The father shall advise the mother at each start of his parenting time where the children will be and a telephone number where they can be reached.

J. The Respondent shall not administer any shots or vaccinations of any kind or nature to the children or allow same to happen by others.

K. The Respondent shall not physically discipline the children nor allow any other person to physically discipline the children.

Issue 2: Child support arrears, child support going forward, and s. 7 expenses

Child support arrears

[53] The mother has been receiving ODSP since 2009. Her annual income from all sources including child tax credits and a special allowance for C.C. is $36,240. Her rental expenses are $1200/month and her financial statement indicates she lives a very modest lifestyle.

[54] The mother receives child support in the amount of $400/month as per Justice Abram’s 2017 order based on the father income at the time. The mother seeks retroactive child support based on the father’s increased income. The father has failed to provide the mother with his financial information since 2017 to enable her to assess past and ongoing child support owed.

[55] During the motion hearing, the father consented to finally providing his Notices of Assessment and Income Tax returns for the years 2017 to 2020. The Notices were filed with the court on August 25, 2021, but not provided to counsel for the mother. They were forward to counsel for the mother. The court will accept them as they will enable the most accurate assessment of the father’s income for those years to determine the quantum of child support arrears, if any, that he owes. I note, however, that as of September 17, 2021, counsel for the mother was still awaiting the father’s income tax returns for the same years as well as for information that was missing on the father’s financial statement.

[56] The Federal Child Support Guidelines, SOR/97-175, as am (Guidelines) set out the minimum amount for child support payable for a child, commonly referred to as Table support, when the support payor has the children for less than 40% of the time. The Respondent father has the children for no more than 28.5% of the time on a weekly basis. As a result, the father is required to pay Table child support for the two children in accordance with the Guidelines.

[57] The father sent an email to counsel for the mother on August 31, 2020, indicating that the parents had agreed to maintain child support for the two children at the rate of $400/month as per Justice Abram’s 2017 Order. The mother perceived the email as an intimidation tactic and does not agree. She wrote to her counsel who informed the father accordingly.

[58] Even if the mother had agreed, such an agreement would not necessarily be accepted by the courts without further explanation from both parents: ss. 15.1(5) and (6) Divorce Act R.S.C. 1985, c.3 (2nd Supp), as am. This is because it has long been established that child support is the right of the children of the marriage and parents have a financial obligation to their children arising at birth and continuing after separation: Colucci v Colucci, 2021 SCC 24 at para 36. Child support is tied to the payor’s income. The presumptive rule is that the quantum of support will be determined by the Table amounts: s. 3(1) Guidelines; see also Colucci at paras 34 and 114.

[59] The Supreme Court of Canada recently explained in the decision of Colucci that child support is not static. A payor cannot reasonably expect that their support obligations will remain static in the face of material increases in their income: Colucci at para 77. In Colucci, the Supreme Court of Canada revisited the legal framework for determination of applications to increase or decrease child support retroactively.

[60] For applications to increase support, the new legal framework requires the receiving parent to establish a material change in circumstances which includes a change in the payor’s income. While the onus is on the recipient to show a material increase in the payor’s income, any failure on the part of the payor to disclose the financial information allows the court to impute income, strike pleadings, draw adverse inferences and award costs: Colucci at para 114(a).

[61] Furthermore, once a material change in circumstances in the payor’s income 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: Colucci at para 73. A recipient is no longer required to demonstrate as a preliminary matter that a retroactive award is appropriate based on the factors set out in D.B.S. v S.R.G., 2006 SCC 37: Colucci at para 73. It is only if an award retroactive to the date of effective notice would be unfair that the court retains discretion to depart from the presumptive date of retroactivity. It is in the exercise of this discretion that the court is to consider the D.B.S. factors also set out in Michel v Graydon, 2020 SCC 24. These factors are the delay in bringing the application, the circumstances of the children, blameworthy conduct on the payor parent, and whether there would be any hardship on imposing a retroactive order. Once entitlement is determined, the Court is to use the Guidelines in quantifying the proper amount of the support for each year since the date of retroactivity: Colucci at para 114.

[62] In this case, Justice Abram’s order for child support was made in November 2017 and included an obligation for the father to provide the mother with his income information annually. The father failed to do so within the first year. On October 3, 2018, the mother brought a motion to Change the Final Order. It is clear form the chronological chart of financial disclosure requests prepared and filed by counsel for the mother, that the father disregard requests for financial information from the mother’s counsel and the court. The father’s multiple adjournments and failure to comply resulted in the matter ultimately being set for trial by way of affidavit. During this interval of three plus years, the mother’s child support was limited to $400/month despite the father’s increase in income.

[63] I am satisfied that the father was put on effective notice on October 3, 2018, and that this would be the presumptive date of retroactivity. I note, however, that the mother is only seeking child support arrears for 2019 to present. I do not find any evidence that would suggest any unfairness in relying on that date of retroactivity as January 1, 2019, or any need to further consider the D.B.S. factors.

[64] The court relies on the income of the paying spouse as it appears on line 150 of his income tax return in determining the Table child support: s. 16 Guidelines.

[65] The father’s income for 2019 was $57,549 which would have required him to pay Table child support in the amount of $877 per month. The father paid only $400/month and therefore he owes an additional $377/month for a total of $4,524 in child support arrears for 2019.

[66] The father’s income for 2020 was $53,176 which would have required him to pay Table child support in the amount of $808.76/month. The father paid $400/month resulting in a shortfall of $408.76/month. The father owes an additional $4,905.12 in child support for 2020.

[67] Where income for a given year is unknown such as in this case for 2021, the court has the discretion to rely on the income of the spouse over the last three years to determine an amount that is fair and reasonable in light of the pattern of income: s. 17 Guidelines.

[68] In this case, the father’s income for 2018, 2019, and 2020, has fluctuated between $53,176 and $57, 549. I find that it would be fair and reasonable to calculate the father’s child support for 2021 and going forward on the basis of his 2020 income. The father owes an additional $408.76/month for January to December 2021 for a total of $4,496.36 in child support arrears for 2021. Should his final income for 2021 be lower, his support can be adjusted accordingly and the father can be credited for any overpayments.

[69] There will be an order that the father will pay the mother retroactive child support for the period of January 1, 2019 to December 1, 2021, in the total amount of $13,925.48.

[70] The father will be granted time to pay the arrears at a rate of $500/month beginning December 1, 2021.

Ongoing child support

[71] There will also be an order that effective December 1, 2021, the father will pay child support going forward in the amount of $808.76 based on his 2020 income. The child support amount can be amended in August 2022 upon receipt of the father’s 2021 Income Tax Return and Notice of Assessment.

[72] To summarize, starting December 1, 2021, the father is ordered to pay $808.76 in ongoing child support plus $500 for child support arrears for a total of $1308.76 per month.

Credit for driving

[73] The mother agrees that going forward the father should receive some credit against his child support for the cost to pick up and drop off the children. The mother does not drive and the father estimates the return trip between Kemptville and Morrisburg is 100 kms. Counsel for the mother and the father will determine a reasonable amount for the costs of travel in fuel and the mother will reimburse the father for half the cost of travel for each weekend of parenting time. This will be on a going forward basis only and has no impact on the child support arrears owed.

[74] Counsel for the mother will draft a clause for my consideration that addresses a reasonable travel cost to be paid and the arrangements for that payment. The mother is not responsible for any other travel costs the father may incur in relation to the children such as attending for medical appointments, school visits, or unexpected emergencies.

Issue 3: Section 7 expenses

[75] Given the mother’s current income, it is unreasonable to expect that she can pay for certain s. 7 expenses such as medical or dental expenses or summer camps from the child support she earns. These expenses will be shared by the parties in proportion to their income.

[76] The mother indicates that the children are not presently enrolled in extracurricular activities on the weekends. It is unclear if they are enrolled in any during the week. In many cases, children’s activities are to be paid from Table support unless they constitute an extraordinary expense. While counsel for the mother requests that the father should pay for all special expenses for the children arranged by either party, including extracurricular activities, the mother has not provided sufficient evidence to assess what, if any, amounts are paid for extracurricular activities and whether those activity expenses are extraordinary to warrant the father to pay for them over and above child support. For this reason, the mother’s request for a general clause mandating payment for all s. 7 expenses is denied.

[77] The father has not made a claim against the mother for costs of children’s activities during his parenting time.

There Order re child support and s. 7 expenses

[78] There will be an order with respect to child support as follows:

A. The father shall pay the mother child support arrears retroactive to January 1, 2019, up to December 1, 2021, in the amount of $13,925.48. The amounts shall be paid at the rate of $500/month commencing December 1, 2021.

B. Commencing December 1, 2021, the father will pay ongoing child support in the amount of $808.76.

C. Unless this support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay than to the person to whom they are owed.

[79] Counsel will prepare and provide a final draft Order consistent with this decision for my review and signature. The draft Order should be shown to the father, but should he fail to respond to counsel in timely fashion, it should be forwarded to me no later than the end of the day November 29, 2021.

Costs

[80] The mother is the successful party on this motion. As indicated to the father during the oral hearing, his conduct in these proceedings as it relates to his failure to provide financial disclosure or to comply with the court orders requiring him to do so have delayed adjudication of this matter and left the mother with a significant shortfall of child support for over three years.

[81] If the parties are unable to settle the issue of costs, costs submissions can be filed. They shall not exceed two pages, exclusive of the Bills of Costs and Offers to Settle. The mother shall file her submissions by December 3, 2021, the father by December 17, 2021, and the mother will have until December 22, 2021 to reply. Please email the submissions to scj.assistants@ontario.ca and to my attention.

Somji J.

Released: November 23, 2021

COURT FILE NO.: 13-1064

DATE: 2021/11/23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Hollie Anita Comfort

Applicant

– and –

Mark Benjamin Comfort

Respondent

DECISION ON MOTION TO CHANGE CHILD SUPPORT AND PARENTING TIME

Somji J.

Released: November 23, 2021