COURT FILE NO.: FC-03-1003
DATE: 2021/11/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lindsay Erin McCain
Applicant
– and –
Darryl James McCain
Respondent
Jill Addison, for the Applicant
Respondent, Self-Represented
HEARD: August 23, 2021- Brockville
DECISION ON MOTION FOR CHILD SUPPORT ARREARs and on-going child support
somji j.
[1] The respondent father brought a motion on September 17, 2020, to terminate child support for the parties’ child J.S.M. aged 19 on the grounds that she was an adult and no longer attending school full time. The parties separated in 2012 and the father has been consistently paying the mother $460/month pursuant to a child support order issued October 2012.
[2] The applicant mother argues that child support should not be terminated because J.S.M. is enrolled as of September 2021 as a full-time student at Carleton University but otherwise residing with her. J.S.M. had been scheduled to start university in September 2020, but chose to defer for a year because of the COVID-19 pandemic and her health-related issues. Consequently, the mother seeks ongoing child support commensurate with the father’s income as well as child support arrears dating back to January 1, 2017, in the amount of $9,722.
[3] The issues to be decided are as follows:
Should the father pay a retroactive increase for child support for the years 2017 to 2020?
If there is an entitlement for arrears, what should the amount be? More particularly, should the father be credited for any additional payments he made to support the child?
Should the father continue to pay child support now that the child is 18 or should it be terminated?
Evidence
[4] Both parties filed factums setting out their respective positions. I have also relied on the following evidence filed in support of the motion:
Father’s Moton to change September 17, 2020;
Father’s Amended Motion to Change February 12, 2021;
Mother’s response to the motion to change March 3, 2021;
Affidavit of the father dated May 4, 2021; and
Affidavit of the mother dated May 6, 2021.
Analysis
Issue 1: Should the father pay a retroactive increase for child support for the years 2018, 2019, and 2020, and if so, in what amount?
[5] The parties were married on October 7, 1995 and divorced on June 14, 2012. They had one child of the marriage J.S.M. born January 2002. J.S.M. turned 18 in January 2020. Following separation, the father was ordered to pay child support in the amount of $460/month pursuant to an Order dated October 23, 2018.
[6] The child support Order has never been varied. The mother explains that she never applied to vary the Order because whenever she requested updated income information, the father would become upset and verbally abusive and so she dropped the matter in order to preserve her mental health. She now seeks child support arrears retroactive to January 1, 2017, in the amount of $9,722.
[7] The father disagrees that he failed to inform the mother of his income. The father states that he provided the mother with his income tax returns for the years 2013, 2014, 2015, and 2016. However, he stopped doing so after the mother moved to California with J.S.M. without notifying him. He was unaware of his daughter’s whereabouts for almost four months until the mother informed him that she had returned and moved to Mallorytown, Ontario. The father appended to his affidavit a letter to the mother dated April 20, 2016, charting his annual salary for the years 2010 to 2015 and the amount of Table support he was to pay. The father points out in the letter that he had been overpaying support for those years but had not made an issue of it.
[8] The father also denies the relationship was abusive. He says the parties attempted invitro in 2013 and 2015 to try and have another child together and that he paid for those costs. He claims the only time the issue of child support came up was when the mother said they might have to redo the court Order for support if there was going to be another child. He states the mother decided not to continue with invitro and cut off communications with him. The mother moved in with her new boyfriend in 2016 in another city along with J.S.M.
[9] The father states that along with child support, he also paid for his daughter’s cell phone bills, her monthly car insurance, her monthly car loan payment, and CAA bill. He was under the impression that some of these payments were a form of child support and asks that he be credited for these payments should support arrears be ordered.
[10] The father acknowledges that his income has increased since 2018 and therefore, the Table amounts for support would have been higher. His calculations differ from the mothers. He calculates his arrears according to the Federal Child Support Tables to be a total of $5,808 for the years 2018, 2019, and 2020.
[11] While this motion was heard in August 2021, the parties prepared their factums and materials in the spring of 2021. As a result, they have relied primarily on the decision of D.B.S. v S.R.G., 2006 SCC 37 for the determination of child support arrears. However, in June of this year, the Supreme Court of Canada revisited the legal framework to be applied for applications to retroactively increase or decrease child support in the case of Colucci v Colucci, 2021 SCC 24.
[12] Under the new framework, an applicant seeking to vary child support must establish a material change in circumstances such as a change in the payor’s income. While the onus is on the recipient of support 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).
[13] 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. Once an increase in a payor’s income is shown, the only question is how far back the retroactive award can go: Colucci at para 73.
[14] What qualifies as “effective notice” in a case where an applicant seeks a retroactive increase? In Colucci, the Court reiterated its position in D.B.S. that the recipient will have provided effective notice simply by broaching the topic of a potential increase. This low bar is justified by the recipient’s informational disadvantage. Colucci at paras 86 and 114(b). Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice as the date of retroactivity.
[15] In Colucci, the Supreme Court stated that the court retains discretion to depart from the presumptive date of retroactivity if the result would be unfair. In exercising this discretion, 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. For example, if the payor had 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.
[16] The Court summarizes at para 114 the principles which now apply to cases for retroactive increases of child support as follows:
It is also helpful to summarize the principles which now apply to cases in which the recipient applies under s. 17 to retroactively increase child support:
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.
[17] In this case, no evidence has been filed demonstrating that the mother gave effective notice to the father that she was seeking additional support. She states she gave up asking but provides no dates or details of their discussions on this issue since support was ordered in 2012. She only provided formal notice that she was seeking an award for child support arrears in March 2021 in response to the father’s motion to terminate child support altogether.
[18] On the other hand, the evidence suggests that the mother had not been provided the father’s income tax returns for 2017, 2018, and 2019 because her counsel requested these as part of the Response for Motion to Change. While the father filed evidence to show that he kept the mother apprised of his income for the years 2010 to 2016, there is no evidence that he notified her of his income increases for 2017 onward. The father also acknowledges that by 2018 his income had increased warranting an increase in the amount of Table support. As stated in Colucci, the failure to disclose a material increase in income qualifies as blameworthy conduct and in these circumstances the date of retroactivity will generally be the date of the increase in the payor’s income which in this case appears to be January 2017: Colucci at para 114(e).
[19] Having said this, the Court stated in Colucci that the date of retroactivity is presumed to extend no further than three years before the date of formal notice. This three-year presumptive rule was developed to incentivize recipients seeking a retroactive variation to move discussions forward once they learn the payor’s income has increased and to protect the payor’s interests in having some level of certainty around their financial affairs. In this case, the mother provided formal notice on March 3, 2021. I find the presumptive date of retroactivity is therefore March 3, 2018. The mother is entitled to child support arrears retroactive to that date.
[20] Once entitlement is determined, the Guidelines should be used in quantifying the proper amount of the support for each year since the date of retroactivity: Colucci at para 114. The father’s income for each of these years and the shortfall of support is set out in the table below.
| Year | Father’s Income $ | Monthly support in accordance to 2017 Guidelines $ | Support to be Paid | Support actually paid by father $460/month | Arrears owed by father |
|---|---|---|---|---|---|
| March to Dec 2018 | 68,421 | 638 for 10 months | 6,380 for 10 months | 4,600 for 10 months | 1,780 |
| 2019 | 69,640 | 650 | 7800 | 5,520 | 2,280 |
| 2020 | 70,867 | 662 | 7,944 | 5,520 | 2,424 |
| Jan to March 1 2021 | Based on 2020 income | 662 | 1,324 | 920 | 404 |
[21] Total arrears = $6,888
[22] According to the Guidelines, the father’s child support arrears retroactive to March 1, 2018 to March 1, 2021, amount to $6,888. The mother is presumptively entitled to that amount.
[23] In arriving at this decision, I have taken into consideration that J.S.M. turned 18 in January 2020 and did not attend school for that year. However, J.S.M. has had health issues over the years that would have made it difficult for her to attend school during the pandemic and to be self-sufficient for that year. Consequently, she continued to reside with the mother and supported financially by her. The father does not dispute the daughter’s health issues over the years and concedes that he himself as contributed to costs of her care. In these circumstances, I find the mother was entitled to child support since January 1, 2020, notwithstanding the child had reached the age of majority.
Issue 2: If arrears are ordered, should the father be credited for any payments made in lieu of support?
[24] In Colucci, the Court indicated that if retroactive variation is appropriate, the quantum is to be governed by the statutory scheme that applies to the award which in this case is the Guidelines. However, the Court noted that the Guidelines leave some space for discretion, such as when there is undue hardship within the meaning of s. 10 of the Guidelines: Colucci at para 109
[25] The father asks that he be credited for additional expenses he has paid over and above child support during the past years. In particular he seeks credit in the amount of $6,900 for the following payments for which he has provided several receipts:
➢ From 2013 to 2017 he paid his daughter’s monthly cell phone bill estimated between $80 to $120;
➢ Between December 2018 and December 2019, he made monthly car and insurance payments for his daughter;
➢ In 2019, he paid his daughter’s CAA costs of $140; and
➢ In 2020, he gave his daughter $2,175 to help her lift her spirits during COVID-19.
[26] The mother acknowledges that the father assisted the child in purchasing her first car but she claims she understood it was a gift. The father had set up a "rent to own" situation with the car dealership. The car remained in the dealership's name until it was paid off. The insurance was in the daughter's name. Unfortunately, the child was in an accident prior to the car being paid off. The insurance proceeds paid off the remainder of the loan to the dealership. A $2,000.00 balance of the insurance proceeds was paid to their daughter which she used towards purchasing a new vehicle. The mother claims she also contributed $1000 to pay for the new vehicle.
[27] Parents have a financial obligation to their children arising at birth and continuing after separation: Colucci at para 36. It is clear from the father’s affidavit evidence that he understands his responsibility in this regard. The father states he has continued to work in his current occupation as a bus driver to ensure that his daughter has access to medical benefits particularly given her health-related concerns. He has maintained life insurance to ensure she is taken care of should he pass. He has contributed financially for health care costs, driver’s education fees, laptops, as well as the items noted above, over and above child support which he has diligently paid since 2012, albeit more recently at a reduced rate than the Guidelines amount. In short, the evidence shows he is a committed and devoted father.
[28] On the other hand, the father would have known that the child support amounts would vary with his income. Child support will vary. 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. When his income went down, the father did not hesitate in informing the mother by letter in 2016 that he was possibly overpaying. Similarly, when he became aware that his income had gone up, he was obliged to inform the mother accordingly so that steps could be taken to adjust his monthly child support upward. Had he done so, the father would have been in a better position to consider whether he could financially afford to also pay for the daughter’s car, insurance, and cellphone or alternatively, whether these additional costs should be shared equally by both parents. His current predicament is largely of his own making.
[29] Furthermore, the mother’s income between 2017 and 2020 has fluctuated from $15,550 to $23,408. She has provided for her daughter’s financial needs. Like the father, she has made discretionary gifts to the daughter. She has encouraged her daughter to work and contribute to costs of car insurance, braces, and her post-secondary education. This is not the situation where the mother is enjoying a high standard of living compared to the father.
[30] The father has not provided evidence that the amount of arrears, which actually reflects what he should have been paying, constitutes a hardship for him: s. 10 Guidelines. For example, he has not identified any other debts or other financial commitments to family or dependents that limits his ability to pay. While the father is frustrated with finding himself having to pay for arrears when he originally brought a motion to terminate child support altogether, he has not demonstrated that he is presently unable on his current income to pay the arrears: Colucci ss. 107-108. Child support arrears are a form of debt and should be taken seriously: Colucci para 41. I find that the evidence does not support a decrease in arrears for reasons of hardship. The father is required to pay the child support arrears in accordance with the Guidelines amount.
[31] There will be an order that the father’s arrears of child support shall be set at $6,888 for the period of March 1, 2018 to March 1, 2021.
Issue 3: Should the father pay ongoing child support or should it be terminated?
[32] The father originally requested child support should end because his daughter was not going to school full-time. However, the child started full-time school at Carleton University in September 2021. The child was scheduled to board at the university for the school year. The father indicates he is prepared to assist with the costs of the daughter’s post-secondary education.
[33] The mother requests that child support continue commensurate with the father’s income for 2020 at a rate of $662/month. The cost of post-secondary education is estimated at $9,364.45 including campus housing fees. The mother states the father is not presently contributing to those costs. The mother still has to care for the child when she comes home for breaks and during the summer. In addition to school and accommodation fees, there are transportation and other incidental costs. While the mother is relying on student loans and the child’s savings to finance university, she anticipates there will be a shortfall in the funds required. For this reason, the mother would like for child support to continue but agrees that it can be reduced given the change in the child’s circumstances. The mother suggests that the matter return to court at a later date for a review of the child support order. At that time, the child’s education status and costs will be more clearly established.
[34] Section 3(2) of the Guidelines provides the court with discretion to readjust the amount of child support for children over the age of majority having consideration for the condition, means, needs and circumstances of the child and the financial ability of each spouse to contribute to the support of the child. When children are attending post-secondary schooling, the courts may reduce the amount of child support during the academic year where the child is not living at home: Park v Thompson, 2005 CanLII 14132 (Ont. C.A.) at paras 27-29. In such cases, the court requires sufficient information to adjust the quantum of support accordingly.
[35] There will be an order for the father to pay on-going child support retroactive to March 1, 2021, at the rate of $662/income commensurate with his 2020 income.
[36] The father has continued to pay child support for 2021 at the rate of $460. The father is ordered to pay for the shortfall. For the months of March to November 2021, this would be additional child support arrears for 9 months in the amount of $1,818.
[37] There will be an order for the father to pay child support arrears for the period of March to November 2021 in the amount of $1,818.
[38] While I have ordered child support to continue, I agree with counsel that the issue of on-going child support should be reviewed by myself or another judge of this Court in the spring of 2022, but no later than July 1, 2022. In the interim, the parents are encouraged to come to an agreement on whether child support should continue and if so, the quantum of support that should be paid, given that the child is now over the age of majority, attending university full time, and residing on campus part-time. Consideration must also be given to what each parent can reasonably contribute to support the child as well as any loans, grants, or contributions from the child herself. In this regard, I note that the father has access to scholarships through his work which he believes J.S.M. should be encouraged to apply for.
Additional orders
[39] To minimize future conflict over child support, there will also be an order for each party to promptly advise each other of any changes in income that may be relevant for the purposes of calculating child support.
[40] In addition, there will be an order that the parties will provide their Income Tax Return and Notice of Assessment to each other by June 1, 2022.
[41] There will also be a condition that unless a support order is withdrawn from the office of the Director of the Family Responsibility office, it shall be enforced by the Director and the amounts owing under the support order shall be paid to the director, who shall pay them to the person to whom they are owed.
[42] The total amount of child support arrears retroactive to March 1, 2018 is $8,706. The father will be given time to pay the arrears. There will be an order that the father will pay for child support arrears at a rate of $500/month commencing December 1, 2021.
[43] Counsel for the mother is requested to prepare a revised draft Order consistent with my decision and submit it, upon confirmation with the father, for my review and signature no later than December 3, 2021.
Costs
[44] The court has the discretion to determine to whom costs should be awarded and in what amount: Section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[45] Rule 24 sets out the legal framework for cost orders in family cases: Mattina v Mattina, 2018 ONCA 867, at para 9.
[46] The starting point is that the successful party is presumptively entitled to costs: r. 24(1). However, in awarding costs judges must also consider the following:
➢ written offers to settle: rr. 18(14) and 24(12)(a)(iii);
➢ any unreasonable conduct on the part of a successful party: r. 24(4); and
➢ if a party has acted in bad faith: r. 24(8).
[47] In determining quantum, I must consider whether the costs sought by the successful party is reasonable: Mattina, at para 13; Berta v. Berta, 2015 ONCA 918 at para 94.
[48] I must also consider the financial means of the parties, their ability to pay, and the effect of any costs ruling on the parties and the children: Fyfe at para 11; M.(A.C.) v. M (D.), 2003 CanLII 18880 (ON CA), 231 D.L.R. (4th) 479, at para 45
[49] The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances of the case, rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), at para 26.
[50] The mother is the successful party on this motion on all the issues. In addition, the father’s failure to notify the mother of his increase in income between the years of 2018 and 2021 is blameworthy conduct that can warrant an order for costs: Colucci at para 114(a).
[51] I find the mother is presumptively entitled to costs in this case. However, I do not find that the father engaged in any other unreasonable conduct during the proceeding that would warrant anything more that partial indemnity costs.
[52] Counsel for the mother is a 1999 call with 22 years experience. She billed 17.2 hours for the motion at a very low rate of less than $150/hour. The total costs were $2,835.15. I find the amount to be reasonable. The issues were not overly complex. I am not aware of offers to settle.
[53] Having considered that the mother was the successful party, the conduct of the parties, , the complexity of the issue, and the hours, rates, and fees as presented on the bill of costs, I find that a costs award to the mother in the fixed amount of $2,173 is fair and reasonable.
[54] The father will pay the mother costs in the amount of $2,173. Given the father is required to pay for child support arrears and on-going child support at a higher rate than to which he is accustomed, the father will have 90 days to pay costs.
Somji J.
Date: November 23, 2021
COURT FILE NO.: FC-03-1003
DATE: 2021/11/23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Lindsay Erin McCain
Applicant
– and –
Darryl James McCain
Respondent
DECISION ON MOTION FOR CHILD SUPPORT ARREARs and on-going child support
Somji J.
Released: November 23, 2021