COURT FILE NO.: 379/17
DATE: November 1, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Erica Ann Woodland Applicant
-and-
Stuart Grenville Kirkham Respondent
Counsel: Linda Smith, for the Applicant
Malcolm J.
REASONS FOR JUDGMENT
Relief requested
[1] This is a decision on an uncontested trial held by video on July 19, 2021 on the application of Erica Ann Woodland as it relates to child support for the now adult child, L. (“L.”). The pleadings of the respondent, Stuart Grenville Kirkham were stuck by order of the court on November 19, 2020 and he did not appear at the trial.
[2] The application was commenced on August 1, 2017 and served on the respondent by courier in August 2017. The irregular service was approved by order in November 2017.
[3] The respondent resides in Australia and, until November 2020, was represented by counsel. His counsel requested to be removed as his solicitor of record.
[4] The applicant Erica Ann Woodland requests an order as follows:
- A declaration that the respondent is a parent to the said child
- That the respondent’s annual income be imputed in the amount of $589,770 CDN based on income tax information for the two years prior to the filing of the application
- Child support pursuant to the Ontario Child Support Guidelines, O Reg 391/97 (the “CSG”) in the amount of $4,443.75 per month commencing October 1, 2009 (retroactive support of $701,926.69)
- Pre- and post-judgment interest (not claimed in application)
- Costs to be enforced by the Family Responsibility Office (not claimed in application)
[5] When the application was commenced, the applicant asked for a custody or parenting order which is no longer necessary as the child is now 20 years of age.
Overview and brief history
[6] The applicant is the mother of L. who was born in Eastern Ontario in 2001. The applicant claims that the respondent, Stuart Grenville Kirkham, is the biological father or parent to the child because of unprotected sexual relations between the parties in Eastern Ontario on July 16, 2000. She had not had sex with anyone for one year prior to July 16 until she discovered she was pregnant in August 2000. The child was born 269 days after the sexual encounter.
[7] The applicant, although educated as a nurse, has recently been in receipt of Ontario Works due to various physical and mental health issues. The child requires two credits to complete his high school education. He has Attention Deficit and Hyperactivity Disorder, and cognitive and behavioural challenges. He has an Individualized Education Plan in math concepts and written expressions.
[8] The respondent is an orthopedic surgeon in Australia with a speciality in hands and wrists. He is not in the publicly funded health care system. He was married at the time the parties met but has since divorced and remarried.
[9] The applicant tried to negotiate child support with the respondent. She reached out to the respondent by telephone when the child was an infant and again when he was four years old. In October 2009 she retained a lawyer. The respondent’s Australian lawyer had requested DNA paternity testing to confirm that “L. is in fact his biological son”, however this offer was then rescinded by the respondent’s new Ontario counsel.
Legal history
[10] The applicant commenced her application in August 2017 after several failed attempts to negotiate child support with the respondent.
[11] The legal history is lengthy and complicated by the respondent’s refusal to participate in DNA paternity testing and to provide full and complete financial disclosure, together with two failed motions he brought for leave to appeal orders.
[12] On July 25, 2018, the applicant amended her application to include a claim for DNA paternity testing to be completed by a company of the respondent’s choosing in Australia.
[13] On July 31, 2018, Swartz J. made an order on consent for the respondent’s financial statements to remain sealed until the testing was completed.
[14] On December 28th, 2018, Trousdale J. ordered that the respondent complete a DNA paternity test under the supervision of an Australian DNA testing company of the applicant’s choosing by March 5, 2019. The time to complete the test was extended at least twice. The respondent brought a motion for leave to appeal this decision.. On August 22, 2019, the Divisional Court dismissed the respondent’s motion. Corbett J. indicated that “denials of paternity are not an exception to the disclosure requirements under the Rules”
[15] Although the applicant consented to a sealing of the respondent’s financial statement until the DNA testing was completed, the applicant subsequently requested that the court unseal the respondent’s financial statement because he refused to compete the testing. On August 20, 2019, Robertson J. made an order for the respondent’s financial statement to be unsealed.
[16] The respondent brought a motion for leave to appeal the decision of Robertson J.
[17] The respondent did not indicate any problem with the location of the testing site until September 3, 2019 when the motion to appeal the decision of Justice Robertson was heard. He disclosed, among other things, that the testing site location chosen by the applicant was unreasonable due to the distance between the site and where the respondent either lived or worked.
[18] The Divisional Court described the respondent’s motion as “ill conceived” and noted that it was brought in the wrong jurisdiction (it should have been brought in Kingston). The Divisional Court dismissed the respondent’s request for leave to appeal but extended the time for him to complete the DNA paternity testing to September 27, 2019. Again, the respondent failed to meet the deadline.
[19] There was a further consent to an extension for DNA testing to November 11, 2019. Not surprisingly, the DNA testing of the respondent did not occur. The applicant and child had already provided their samples.
[20] After the respondent’s financial statements were unsealed and the applicant reviewed them on September 3, 2019, she made requests for further financial information on September 30, 2019 and served two Requests to Admit (Form 22) under rule 22 of the Family Law Rules, O. Reg. 114/99.
[21] A motion to compel financial disclosure and payment of costs was brought by the applicant in December 2019 and adjourned for argument to March 3, 2020. On the eve of the motion, the respondent paid his costs orders of $16,000.
[22] The respondent was given an extension of time to complete his financial disclosure. Because he did not provide it, a motion was brought in December 2019 to compel him to make full and complete financial disclosure. Predictably, he did not provide the financial disclosure.
[23] Subsequently, on March 3, 2020, there was a further order of financial disclosure. There were written questions in a schedule attached to the order. One of the most important was an explanation for the reduction of income of 67% from the respondent’s 2015 and 2016 levels to the 2017 level. An expert report was to be filed by the applicant after the disclosure was received.
[24] On September 6, 2019 the matter was set for trial for the week of March 23, 2020 but adjourned on consent to the week of August 17, 2020 because of the outstanding financial disclosure. The trial did not proceed in August 2020 due to the Covid-19 pandemic.
[25] Because the respondent did not comply with previous orders for financial disclosure, Swartz J. struck his pleadings on November 19, 2020. She also ordered that if he paid the outstanding costs or posted security for costs in the amount of $90,000 and complied with the financial disclosure orders by December 15, 2020, his pleadings would be reinstated. He did not provide the financial disclosure or pay the costs.
[26] Although the respondent’s pleadings were struck in November 2020, in December 2020, he filed an unsworn “affidavit” with the court essentially denying knowing the applicant or her son yet offering to settle for $90,000. He also included his notices of assessment for his personal income for 2020 and 2019 showing income of $155,000 and $162,000 Australian (AUD). No explanation was given as to how his income had dropped from almost $600,000 in 2015 to $155,000 in 2020.
Evidence at the hearing
[27] The applicant and the forensic accountant testified by zoom video. The following were filed electronically in support of the uncontested hearing:
i. The application dated August 1, 2017 ii. Amended application dated July 25, 2018 iii. Applicant’s financial statement dated July 9, 2021 iv. Respondent’s financial statement dated April 2018 v. Applicant’s Form 23C affidavit for uncontested hearing sworn in court on July 19, 2021 vi. Affidavit of Carolyn Shelly, counsel for the applicant in 2009, sworn July 6, 2021 vii. Forensic Report of accountants, Matson Discoll and Damico Ltd (Estimated income report of Connor Paxton), dated July 7, 2021 viii. Curriculum Vitae of Connor Paxton ix. Orders and 24 endorsements made in this proceeding x. Factum of the applicant dated July 13, 2021 xi. Supplementary written submissions dated August 3, 2021 on oral motions made on July 19, 2020
Summary of the evidence
[28] The applicant’s evidence was compelling and credible. She had excellent recollection of the evening that she met the respondent and her subsequent attempts to obtain financial assistance from the respondent after the birth of L. Her description of her financial struggles and the impact on L. was very sad but not overstated. The applicant and L. have suffered considerably due to the respondent’s success in delaying the progress of this application by refusing to cooperate with orders for DNA testing and financial disclosure, and by bringing two unsuccessful motions to appeal.
[29] Despite the respondent’s categorization of the applicant as aggressive towards him and his family in his unsworn affidavit, there is nothing in the evidence to support that statement. Instead, I find the applicant has been reasonable in the extreme and too passive at times in response to the respondent’s denials and refusal to cooperate with her, the lawyers and then the courts. Recently she has conducted online searches to obtain the missing financial disclosure about the respondent but not in an inappropriate or aggressive way.
[30] In stark contrast to the applicant’s financial struggles, it appears that the respondent has flourished as a prominent orthopaedic surgeon in Australia.
[31] I find that the respondent has denied, evaded and delayed the negotiations and the court proceedings to the financial detriment of L. and the applicant.
Paternity or parentage
[32] The applicant clearly remembers the night L. was conceived as it was her brother’s 19th birthday and she had travelled from western Ontario, where she was a nursing student, to eastern Ontario to celebrate with her brother, two sisters and friends. After the last call in the bar, the group went to get food and the applicant decided to get something healthier than pizza and poutine and went to get a pita. She met the respondent in line waiting for their food and they started a conversation that continued outside on a bench. She discovered she had his pita by mistake as it had olives. They switched pitas and continued to talk.
[33] He told her he was a doctor and showed her his hospital credentials. She noticed his middle name of Grenville and thought the last name was Kirk. She knew his first name was Stuart. He said he studied hand and elbow orthopedics at the University of T. He even looked at her hand that had suffered an injury as a teenager and commented that he could fix it. The applicant remembered that she joked that orthopedic surgeons were “the mechanics of the medical profession” to which he took offence. They continued to the downtown area of Kingston. The applicant went to where her group was supposed to be, only to find that no one was there. She described the respondent trying to kiss her.
[34] The applicant and respondent eventually went to his motel at his invitation. She met his roommate for the night, P. and his colleagues who had been with him during the day’s golf tournament. Eventually they went to his motel room. She said P. who was in the other bed, woke up briefly when they came in, then went back to sleep. She and the respondent had unprotected sex. She indicated that they both shared that they had ended relationships. He said he had ended a four-year relationship.
[35] The next morning, he invited her to come with him to the airport. Since his taxi was late, he got a ride with a friend from R. Ontario.
[36] 269 days later, the applicant gave birth to L. The respondent was not listed as the father on the statement of live birth as the applicant did not have his full name and he was not present to sign the forms. She indicates that she did not have sexual relations with anyone else until after she discovered she was pregnant in August 2000.
[37] The mother completed her nursing degree but had not completed the Practicum when L. was born. She had to apply for social assistance, Ontario Works, and her worker did not compel her to pursue the respondent for child support because he lived in another country.
[38] However, by coincidence, the applicant’s sister was later able to discover P.’s last name, B., through connections at the bar where she works. One of her customers knew P.’s wife. P. had extreme scarring on his face from acne and worked at the local newspaper.
[39] The respondent called P.B. to ask him to contact Stuart. The applicant would have called Mr. B. as a witness, but he no longer works at the local newspaper and she was unable to locate him to serve him personally with a summons. Several emails were sent to his place of employment, but he did not respond. As the witness did not give evidence, I will not rely on statements made by him to the applicant except as part of the narrative. In any event, the applicant did not hear from the respondent as a result of Mr. B.’s outreach.
[40] The applicant eventually found the respondent’s contact information though an international medical directory. Around November 2001, she had never made an international call and needed help from the telephone operator to complete it. She told the respondent’s staff who answered the phone that she was a friend from Canada. The respondent, when reached, denied knowing the applicant and feigned surprise at there being another Dr. Stuart Kirkham. He then called her back in an hour and admitted “It is me. I’m such an asshole. I’m shaking in my boots.” He told her he was married and had two children. He said his wife had a difficult life and his son potentially had a learning disability. He asked questions about L. and the applicant said he had the respondent’s lips. The call ended amicably. Coincidently, L. was later diagnosed with learning disabilities.
[41] The next day, the respondent called back and was confrontational and said he spoke to a trusted friend who told him he was not responsible as she had not terminated the pregnancy. He said he would take the secret of L. to his grave.
[42] The applicant said she then went about raising L. on her own. Having listened to the applicant on the stand I find that she was a kind person who had a difficult life. She was not aggressive, and I find she did not pursue the respondent as she lacked the resources financially or emotionally to do so.
[43] When L. was 4 years of age she again reached out to the respondent. She was struggling financially. Her cousin who was in law school urged her to do so. Although the respondent was angry, he did take her call. The applicant told him that she and L. were struggling financially and needed help. She said any help would be appreciated. When she testified, she said she asked for $100 a month and she found it very humiliating to beg. The respondent told her that getting a lawyer would be a terrible mistake. The applicant again did not follow up. She found him very intimidating.
[44] In 2009 when L. was eight years of age, the applicant retained a lawyer privately. The negotiations were initially positive; the respondent’s lawyers asked for paternity testing to confirm that the respondent was the father and suggested an out of court settlement if he was found to be the father. The lawyer who represented the applicant at the time filed an affidavit setting out the negotiations.
[45] After the respondent’s first lawyers from Australia asked for the DNA testing, the respondent’s new Ontario lawyer, who became his lawyer in these proceedings, indicated the respondent did not authorize his previous lawyers to agree to the testing. I find that the evasion and delay of the respondent was strategic to avoid a determination that he is a parent to L. and obliged to financially support him.
[46] After these legal proceedings were commenced, the respondent continued to evade and delay the proceeding. As indicated, he refused to participate in DNA paternity testing despite his lawyers first requesting it and the court then ordering it. This matter could have been resolved years earlier but for the respondent’s refusal to cooperate. There were 24 court events in this matter and 2 motions for leave to appeal to the Divisional Court.
Analysis on parentage
[47] Pursuant to section 17.2(4) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, an adverse inference can be drawn from the respondent’s failure to comply with the order for leave to obtain paternity testing.
[48] The respondent has provided reasons of his noncompliance. The various excuses were addressed in a fulsome way by Trousdale J. in her decision on December 12, 2018 on the issue of the DNA paternity testing: see W. v. K., 2018 ONSC 7765, at paras. 8-12.
[49] These excuses included:
a. the court lacks jurisdiction (the court has jurisdiction under section 17.2(1) of the Children’s Law Reform Act) b. the child is over the age of 16 and would need to consent to the order (the child was consenting to the order) c. the location being too far away from his home (which was addressed by choosing a site closer to his home) d. the testing was contrary to the child’s best interests (the child was seeking the order) e. delay (the delay could be addressed at trial, but DNA testing was first raised in 2009) f. bad faith (bad faith could be addressed at trial) g. the respondent’s privacy rights (this was addressed by using initials in the decision and the respondent was free to choose the facility and the method of collection and the destruction of the sample after the test)
[50] None of the respondent’s reasons provide an adequate explanation for his refusal to cooperate with DNA paternity testing.
[51] The best evidence of parentage can be obtained through scientific testing or DNA paternity testing. As Robertson J. stated in M. v. H., 1999 CanLII 19044 (Ont. S.C.):
[5] Only the parties know the level of their intimacy. An objective and impartial scientific test can provide the court with a reliable source of evidence and gauge of credibility. The interests of justice require the court to consider the best evidence and to manage its process in an emotionally and financially expedient way. The test results may offer the parties a speedy exit ramp from the court process.
[52] Interestingly, in M. v. H. there had been a 17-year delay in commencing proceedings.
[53] If the respondent had cooperated with DNA testing in 2009, the court attendances may not have been necessary, and he would have had scientific proof of paternity. The child likely would have had a very different life. It is in a child’s best interests to be fully supported by all parents, and without acknowledgment, declaration or finding of parentage, a child may not be adequately financially supported. Child support is the right of the child. Mistakes of the parents should not be owned by the child.
[54] As indicated earlier, the respondent was unsuccessful in an appeal of the decision of Trousdale J. regarding the DNA paternity testing in September 2019. The applicant and the child provided their DNA samples to the collection site on January 29, 2019. Trousdale J. had provided a deadline of March 5, 2019 to complete the testing. The testing was further extended after the unsuccessful Divisional Court appeal.
[55] The respondent’s refusal to cooperate with DNA testing does not automatically lead to a finding of paternity. The applicant must prove on a balance of probabilities that the respondent is the parent of L. The court must weigh the refusal with the evidence as a whole: see Beith v. Tassone (2003), 2003 CanLII 88999 (ON CJ), 46 R.F.L. (5th) 248 (Ont. C.J.), at para. 44.
[56] I am reminded of the quote from Hamlet and think that the respondent does “protest too much” in his denials of paternity or financial disclosure. By avoiding the DNA paternity testing, he can continue to deny parentage and maybe save face except to the person who is the most suffering – his Canadian son.
[57] In 2009, the respondent’s lawyer requested DNA testing at the applicant’s cost “to put the matter beyond question”. This was excellent advice not taken by the respondent. Given the respondent’s actions I make an adverse inference in his refusal to cooperate with the testing. It would have provided the best evidence of parentage. The respondent’s refusal to cooperate and then delay the proceedings is similar to the case of C.M.M. v. D.G.C., 2015 ONCC 1815, 65 R.F.L. (7th) 15, wherein at para. 164 the court drew an adverse inference and declared the respondent to be the child’s father.
[58] The applicant has proven her case even without the adverse inference. Her evidence as to the sexual relations with the respondent and no other partners from one year before July 16, 2000 until she discovered she was pregnant is credible.
[59] She testified that the respondent asked what it would take for her requests to go away. He did not deny having sex with her during the first direct phone calls between the parties.
[60] The delay in the proceedings has also allowed L. to mature into a young man who now looks remarkably like the respondent as seen in the photos of the respondent and child attached to the applicant’s affidavit. A similar appearance is not proof of parentage, but it supports the applicant’s case.
[61] I find, on a balance of probabilities, that the respondent is a parent of the child L., born […]. The applicant asks to amend the birth registration to include the respondent as a parent for the emotional benefit of the child. Given the child’s age, he will be required to consent to the amendment to the birth registration. The applicant shall be entitled, subject to the consent of the child, to apply to amend the birth registration to include the respondent’s full name, Stuart Grenville Kirkham, as a parent or the father. The respondent’s consent is not required.
Child support
[62] Having found that the respondent is a parent to L., the issue of chid support shall be addressed. In Ontario, the court considers the CSG and the applicable Table to determine child support using the parent’s income. This applies to parents who live in different countries. The operative sections to consider are as follows:
AMOUNT OF CHILD SUPPORT
Presumptive rule
- (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7. O. Reg. 391/97, s. 3 (1).
Child the age of majority or over
(2) Unless otherwise provided under these guidelines, where a child to whom an order for the support of a child relates is the age of majority or over, the amount of an order for the support of a child is,
(a) the amount determined by applying these guidelines as if the child were under the age of majority; or
(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent or spouse to contribute to the support of the child. O. Reg. 391/97, s. 3 (2).
Incomes over $150,000
- Where the income of the parent or spouse against whom an order for the support of a child is sought is over $150,000, the amount of an order for the support of a child is,
(a) the amount determined under section 3; or
(b) if the court considers that amount to be inappropriate,
(i) in respect of the first $150,000 of the parent’s or spouse’s income, the amount set out in the table for the number of children under the age of majority to whom the order relates,
(ii) in respect of the balance of the parent’s or spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent or spouse to contribute to the support of the children, and
(iii) the amount, if any, determined under section 7. O. Reg. 391/97, s. 4.
Respondent’s income
[63] When the respondent was participating in these proceedings, he filed a financial statement sworn April 20, 2018 and notices of assessment from 2015 to 2017. He subsequently filed notices of assessment from 2019 and 2020. His income for 2016 was $532,667.00 and for 2015 was $626,876.00 AUD. It is important to note that he was served with the application prior to the date on which he had to file for his 2017 income tax return.
[64] After he was served with the application, the respondent’s income dropped by approximately 70 per cent in 2017 according to his Notice of Assessment. The Notices of Assessment show only personal income.
[65] His financial statement indicates he is self-employed, but he reports his income as an employee. He did not file the financial statement of the professional practice, his partnerships, or the corporations in which he is a director as required under section 21 of the CSG. Further he indicates he is enclosing the statement of expenses and income but does not. He shows a mortgage expense of $5,000 per month but no real property. No income tax returns or supporting documents were provided. There are many deficiencies in his financial statement.
[66] The child support system depends upon adequate, accurate and timely financial disclosure: see Colucci v. Colucci, 2021 SCC 24, at para. 48. In this case it was difficult for the applicant to move forward without the requested financial information.
[67] Given his refusal to comply with the DNA order and most of the financial disclosure orders, I find that the respondent’s income as shown in his Notices of Assessment prior to the commencement of these proceedings is more accurate that those filed after the application was commenced.
[68] The respondent did not comply with the order from March 3, 2020 that included a request for an explanation for the extreme reduction in income from 2016. I shall draw an adverse inference and impute income pursuant to section 23 of the CSG for lack of income information.
[69] Based on the income information for the years prior to 2017 and the refusal to comply with the full financial disclosure, imputing income to the respondent by averaging the 2015 and 2016 income would be appropriate.
[70] I also find that the 2015 and 2016 Notices of Assessment are likely much less than the respondent’s actual income due to his refusal to answer questions about his partnership, company and other sources of income as set out in Schedule A to the order of March 3, 2020. Further adjustments to income are required to determine his actual income.
[71] Connor Paxton, a charted accountant, and forensic accountant provided a report and testified at trial. I found him to be an expert particularly in business or income evaluation. His testimony was very balanced and supported by the evidence. The evidence was fair, objective and non-partisan. He did not give an opinion on matters in which he did not have sufficient information despite my own questioning.
[72] I found Mr. Paxton to be very helpful in determining the respondent’s income, or at least in determining that the respondent is sheltering income. This tax reduction approach may be allowed for income tax purposes, but for child support income all sources of income are required to be disclosed.
[73] Given the lack of financial disclosure, Mr Paxton was unable to give an opinion as to the respondent’s income other than it was likely underreported. He does not know the exact tax structure the respondent utilizes to report billing from clients as personal income. Mr Paxton did not receive a breakdown of sources of personal income. He does not know the revenue or expenses from the partnerships, professional practices, or corporations in which the respondent is involved. Most importantly, he has no explanation from the respondent for the decline in income from 2015 and 2016 to the following years.
[74] Mr. Paxton conducted corporate business searches in Australia and found that the respondent was listed as a director and shareholder in at least two corporations as set out in his report. The respondent’s wife was added as a co-director on the first named company in May 15, 2019. Although both companies were established several years before the financial statement was sworn, these assets were not included in the respondent’s financial statement sworn on April 18, 2018. Mr. Paxton was able to determine that these companies showed revenue of $293,563 USD and $278,977 USD in a year unclear to him (paragraph 32 and footnote 10 of his report.)
[75] In addition, there were several other companies found where the respondent may be able to shelter income. These corporations are set out in paragraph 61 of the applicant’s trial affidavit and in the report of Mr. Paxton (at paragraph 19, 20). The respondent was also found to be listed as a physician in three separate medical clinics.
[76] Section 18 of the CSG provides that there can be an attribution of corporate pre-tax income where a parent is a shareholder or director of a corporation and the parent’s income does not fairly reflect all the money available for child support. I do not know what that income may be, although it appears the two corporations in which he is a director had incomes of over $200,000.00 USD in one year.
[77] In addition to potential corporate income, the applicant discovered the respondent had sold real property which may have been matrimonial homes. The applicant conducted real estate searches as set out in paragraphs 67 b), c) and d) of her affidavit and found that in 2014 the respondent and his first wife Vanessa sold their home for $4.6 million AUD. In 2018 he was listing another home for a sale price of $2.5 million AUD. The proceeds are not reflected in the financial statement of the respondent which shows a very modest net asset value of approximately $30,000. This is not consistent with a successful orthopedic surgeon unless income and assets are sheltered in other ways, such as corporations, partnerships, or other property held in other person’s names. I find that the respondent does have other sources of income that are not reflected in his financial statement or notices of assessment filed.
[78] Once it is determined that a parent’s income does not fairly reflect what is available to them, the court can adjust and impute income under section 19(1) of the CSG. The relevant sections are as follows:
Imputing income
- (1) The court may impute such amount of income to a parent or spouse as it considers appropriate in the circumstances, which circumstances include,
(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;
(c) the parent or spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these guidelines;
(e) the parent’s or spouse’s property is not reasonably utilized to generate income;
(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;
(g) the parent or spouse unreasonably deducts expenses from income;
[79] Mr. Paxton testified that the effective rates of income tax are lower in Australia than in Canada and adjusted the respondent’s personal income tax accordingly. According to table 4 of the report filed, in 2016 the difference in tax payable would have been $19,073 which would be grossed up and then added to income in the amount of $41,044. The exchange rate for the Australian dollar has been consistent over the past few years at .9295 per cent.
[80] In Table 1 of his report, Mr Paxton provided the respondent’s income from his personal notices of assessment grossed up for the difference in the income tax rate and then adjusted for the exchange rate. It shows an adjusted income in 2016 of $533,264 and $594,213 or an average of $563,738 for the two years.
[81] Because of the financial documentation or answers to questions that were not provided, Mr. Paxton was not able to provide a reliable estimate of the respondent’s income.
[82] The applicant was able to review public social media posts for the respondent showing a lavish lifestyle including a luxurious honeymoon in 2019. I cannot take judicial notice as the honeymoon could have been paid for by the wife or family. I can take notice that he does appear to have a lavish lifestyle.
[83] I find the best evidence for the court to consider is the reported income of the respondent for 2015 and 2016, grossed up for income tax and reduced for the exchange rate. I recognize that these income levels are likely less than his actual income due to the absence of corporate or partnership income. Child support based on $563,738 is $4,277.91 per month. Support owed from the date of the application in August 2017 for four years and one month is $209,617.59.
[84] The applicant asks for retroactive support from the year of her lawyer’s demand in October 2009. The applicant was able to obtain general information from a Canadian billing software website “Dr. Bill” about the income of an orthopedic surgeon. Surgeons after 8 years are estimated to be able to earn incomes of $483,000 in their first year of practice and $800,000 in 20 years of practice. I cannot take judicial notice that doctors in Australia earn these amounts. However, I note that the respondent was aware that a retroactive claim was being requested and if his income was much less from 2009 to 2014, he could have disclosed it.
Retroactive claim for child support from October 2009
[85] The evidence is uncontradicted that the applicant retained a lawyer in 2009 who negotiated with the respondent’s Australian counsel and then Ontario counsel. This occurred after she made two earlier attempts to obtain support without counsel.
[86] The applicant could not replenish the lawyer’s retainer in 2010. Subsequently, the applicant’s physical and mental health challenges caused her to leave her job as a nurse in 2014. She suffered from back problems and mental health struggles. She had been working two jobs to make ends meet. L. was a very active youth and his behaviour was sometimes disruptive and unsafe in the classroom causing the mother to have to go and get him early from his school.
[87] After leaving her job, the applicant received social assistance again and declared bankruptcy in 2016. In 2017, she was able to retain Queen’s Family Law Clinic to bring this application.
[88] A framework for considering retroactive child support is set out in the Supreme Court of Canada case of D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. The issue of effective date of notice of the request for support is outlines as follows:
121 Choosing the date of effective notice as a default option avoids this pitfall. By “effective notice”, I am referring to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling.
122 Accordingly, by awarding child support from the date of effective notice, a fair balance between certainty and flexibility is maintained. Awaiting legal action from the recipient parent errs too far on the side of the payor parent’s interest in certainty, while awarding retroactive support from the date it could have been claimed originally erodes this interest too much. Knowing support is related to income, the payor parent will generally be reasonable in thinking that his/her child’s entitlements are being met where (s)he has honestly disclosed his/her circumstances and the recipient parent has not raised the issue of child support.
123 Once the recipient parent raises the issue of child support, his/her responsibility is not automatically fulfilled. Discussions should move forward. If they do not, legal action should be contemplated. While the date of effective notice will usually signal an effort on the part of the recipient parent to alter the child support situation, a prolonged period of inactivity after effective notice may indicate that the payor parent’s reasonable interest in certainty has returned. Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. The federal regime appears to have contemplated this issue by limiting a recipient parent’s request for historical income information to a three-year period: see s. 25(1)(a) of the Guidelines. In general, I believe the same rough guideline can be followed for retroactive awards: it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.
[89] A three-year retroactive award from the date the application was made (i.e. August 2014) would be $102,669.84. If added to the award from the commencement of the application, a total of $312,287.43 in child support would be owed by the respondent to the applicant.
[90] The applicant asks for an order that is more than the three years from the date of the application. She asks that the award be calculated based on the negotiations of legal counsel made in October 2009 which would provide for retroactive support of 11 years (if October 2021 is included) or $564,684.12. She does not ask for support from the date of the two earlier demands or requests for support.
[91] In the Ontario Court of Appeal case of S.P. v. R.P., 2011 ONCA 336, 332 D.L.R. (4th) 385, the court helpfully summarized the four factors to be considered in making an order of retroactive support.
[35] In D.B.S., Bastarache J. emphasized at para. 99 that in considering the question of retroactive support, a court should strive for a holistic view of the matter and decide each case on the basis of its particular facts. Bastarache J. also set out at paras. 100-116 four factors that should be considered in making a retroactive child support order, noting that none of the factors is decisive: the reason why support was not sought earlier, the conduct of the payor parent, the circumstances (both past and current) of the child, and potential hardship on the payor parent flowing from a retroactive award.
[92] The applicant’s attempts to contact the respondent earlier was hampered by her lack of contact information for him. Luck and hard work resulted in her obtaining this information and she did alert the respondent that he had a child and that she needed his support. The respondent replied on the one call “what would it take to get rid of you”. She had been asking for a modest amount of $100 per month. The respondent has known of the existence of his child for 20 years. The applicant is asking for support for the last 12 years.
[93] I find that the applicant lacked the financial and emotional means to bring the application until 2017 although she made serious attempts in 2009 and 2010.
[94] I also consider the child’s special needs that caused the applicant to devote considerable time to his care and the applicant’s own mental health challenges that impacted her ability to move forward with her claims.
[95] The delay in bringing the application is understandable and reasonable in all of the circumstances as set out in the applicant’s affidavit and testimony. If the order is not made retroactive to October 2009 the respondent succeeds in his attempts to evade and delay payment to his child and sends a message to other litigants that stalling and non-disclosure are effective litigation plans: see Benserol v. Issa and Farag, 2017 ONSC 3655, 95 R.F.L. (7th) 149, at para. 28.
[96] I consider the respondent’s refusal to participate both in this proceeding and the DNA paternity testing in 2009 and 2010 to be blameworthy conduct. Further, his refusal to complete his court ordered financial disclosure has lengthened this litigation considerably.
[97] The court must also consider the circumstances of the child. L. has suffered due to the lack of financial support from his father and his mother’s limited financial resources. The child would have benefitted from earlier assessment of his behavioral and learning challenges and the resulting treatment, support and tutoring. If licensed day care had been available, the mother may have been able to remain in the work force to have assisted better in the family support.
[98] The issue of the child’s circumstances was considered In Michel v. Graydon, 2020 SCC 24, 449 D.L.R. (4th) 147, another Supreme Court of Canada decision on retroactive child support.
[120] Although the Guidelines heralded a shift from the conception of need as the primary motivator for child support to an understanding of support as the child’s entitlement, a child’s needs may still be relevant in awarding and calculating retroactive child support. If there has been hardship present during their childhood, or if the child needs funds at the time of the hearing, this weighs in favour not only of an award but also of extending the temporal reach of the award. This factor may play a particular role in applications for historical child support.
[121] Where the child has suffered deprivation, this factor is a significant consideration in favour of relief.
[99] The compelling evidence of the applicant describing L. as being unable to participate in extracurricular activities nor able to obtain needed assessment, counselling or tutoring for his special needs establishes his deprivation. The family has had to live on the charity of others and the child has not had even the basics of food, clothing, and shelter at times. The child has seen his mother’s car being repossessed and her returning groceries at the cash register as she lacks sufficient funds. The child is overweight and would have benefited from healthier food and a gym membership. The child suffers from anxiety and depression and extra funds would allow for treatment and counselling to allow him to continue with his education.
[100] The juxtaposition of the respondent selling a four-million-dollar home and L. not having access to food, clothing, shoes or bedding when required is startling.
[101] The applicant has satisfied me that a retroactive award is required beyond the three years prior to the date of the application. Effective notice was given in 2009, the delay has been reasonably explained, the respondent has engaged in blameworthy conduct and the child has suffered deprivation. There is no evidence that the amount requested will cause hardship to the respondent that cannot be addressed by a repayment schedule to be arranged with the support enforcement agency.
[102] Retroactive child support in the amount of $4,277.91 per month based on the respondent’s imputed annual income of $563,738 CDN from October 1, 2009 to October 1, 2021 is $564,684.12.
Income over $ 150,000 and children over the age of majority
[103] Section 4 of the CSG provides that if the parent’s income is over $150,000 the court may order the table support or, if inappropriate, another amount considering the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the child’s support.
[104] The leading case on this issue is Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250, in which Bastarche J. indicates at para. 42 that “[n]evertheless, based on the ordinary meaning of the provision, its context in the overall child support scheme, and the purposes of the Guidelines, I find that in all cases Parliament intended that there be a presumption in favour of the Table amounts.”
[105] The child still resides in the care of the applicant and is completing high school. Pursuant to section 31(1) (b) and (c) of the Family Law Act, R.S.O. 1990, c. F.3, a child is entitled to support if enrolled in a full-time program of education or unable to withdraw from parental control due to illness, disability or other cause.
[106] Given the child’s learning exceptionalities or disabilities, I find that he is entitled to be supported in accordance with the Table under the CSG although he is not in school full-time and is over the age of majority. Further, I find the lack of support from his father for his lifetime has impacted his ability to complete his education sooner. The child would have benefited from psychoeducational assessment, support, treatment and tutoring to address his educational, behavioral and mental health needs. It has taken longer for this child to finish high school due to his learning issues, the restrictions of in person learning and the Covid-19 pandemic. The child and the applicant live in a home with the grandmother and uncle who are elderly and require strict adherence to isolation and social distancing. The child is unable to withdraw from his mother’s care at this time.
[107] There is no clear and compelling reason that the table amount is not appropriate.
[108] As found by Sherr J. in Marchenko v. Ghassan, 2018 ONCJ 74, at para. 37, a child over the age of majority living at home with the same expenses as a child under the age of majority may be entitled to the Table amount of support as set out in the CSG.
[109] If the child moves out of the applicant’s home, the ongoing monthly support may be adjusted or even terminated if he is not pursing post-secondary education. If he does pursue postsecondary education, section 7 expenses as it relates to his education costs may be considered if there is a motion to change child support.
Pre-judgment and post-judgment interest
[110] The applicant asks for pre- and post-judgment interest. It was not claimed in her application, but I expect that was an oversight. She brought an oral motion to include it. Given my discretion I decline to order pre-judgment interest, but I will allow the claim for postjudgment interest. If the retroactive or ongoing child support is not paid, a support deduction order provides for interest to be calculated and enforced based on the Courts of Justice Rate.
Costs to be enforced by the Family Responsibility Office
[111] The applicant asks that the costs order of Swartz J. and any order of costs made by me are enforced under the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31. I find that the respondent has a history of not paying costs orders, and that most of the costs arise in relation to support, the entitlement to it and quantum and duration. Therefore, the order will be enforceable as part of a child support order: see e.g. Drygala v. Pauli (2003), 2003 CanLII 48241 (ON CA), 35 R.F.L. (5th) 323 (Ont. C.A.).
Costs
[112] The applicant has been successful in her case and is entitled to her costs of this uncontested hearing. The income imputed is not exactly as the applicant requested but I expect she did not have the accountant’s adjustments to income when she prepared her affidavit for uncontested hearing.
Use of Initials to identify the parties and or child
[113] In the paragraph 34 of the endorsement of December 28, 2018 of Trousdale J. , she addressed the respondent’s privacy rights as it related to the motion for DNA testing:
I find that the Respondent’s privacy interests would not be infringed by an order granting leave for DNA testing to determine parentage in the context of an application for child support. Nevertheless, I have taken steps to provide some measure of privacy in this matter to both parties and to the child at this time, by using initials to identify them in this endorsement.
[114] Since that order was made the respondent has not complied with the order for DNA testing or financial disclosure. The applicant has asked for permission to change the child’s birth registration. I have no request to use initials in the decision nor any requests for a publication ban or sealing order in the applicant’s materials. If requested , the court has discretion to make an order pursuant to The Children’s Law Reform Act as follows:
Confidentiality
70 (1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,
(a) that access to all or part of the court file be limited to,
(i) the court and authorized court employees,
(ii) the parties and their counsel,
(iii) counsel, if any, representing the child who is the subject of the application, and
(iv) any other person that the court may specify; or
(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. 2009, c. 11, s. 18.
Considerations
(2) In determining whether to make an order under subsection (1), the court shall consider,
(a) the nature and sensitivity of the information contained in the documentsrelating to the application under this Part that appear in the court file; and
(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents. 2009, c. 11, s. 18.
[115] The courts have addressed the issue of the open court principle against the protection of children and I find that I do have discretion to continue the use of initials in my decision if the child would suffered physical, mental or emotional harm, see: Danso v Dartely, 2018 ONSC 4929 and M.M. v N.M., 2018 ONSC 6939.
[116] The test for the publication ban is a high one as set out in Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41, 2002 S.C.C 41. However, given the reality of identity theft and cyber bullying, it is also important to provide some privacy for children. Using my discretion as to the identity of the child only, I will not disclose the child’s name, birthdate, or place of birth.
[117] I will wait to send this decision for publication until I have received the costs submissions. If counsel for the applicant wishes to make submissions of the use of initials for the parties, she can do so at the same time.
[118] I will provide a separate order with the child’s full name for the child support purposes and filing in the court file.
This Court Orders as follows:
It is declared that the respondent, Stuart Grenville Kirkham, is a parent of the child L.[…] born [..2001] The applicant, Erica Ann Woodland shall be entitled, subject to the consent of the said child, to apply to amend the birth registration to include the respondent’s full name, Stuart Grenville Kirkham as a parent or the father. The respondent’s consent is not required.
The respondent’s annual income is imputed at $563,738 CDN.
Based on the respondent’s imputed income of $563,738 CDN, he shall pay to the applicant, for the support of the said child, the sum of $4,277.91 per month commencing November 1, 2021 and monthly thereafter while the child is entitled to support pursuant to section 31 of the Family Law Act or until further order of the court. The applicant shall advise the Respondent and the Family Responsibility Office if the child moves from the home of the applicant or is no longer enrolled or attending school.
The respondent shall pay the amount of $564,684.12 to the applicant for the retroactive child support of the said child from October 1, 2009 to October 1, 2021.
The costs of $9000 as ordered by Swartz J. dated November 2020 shall be paid by support deduction order and are enforceable as child support.
Counsel for the applicant shall provide short written submissions on the issue of costs and a draft order and support deduction order to the court within 30 days.
Unless the support order is withdrawn from 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 them to the person to whom they are owed. A support deduction order will be issued.
This order bears interest at the post-judgment interest rate set out in the Courts of Justice Act of 2% per year effective from the date of this order. A payment in default bears interest only from the date of default.
Justice W. Malcolm
Released: November 1, 2021
COURT FILE NO.: 379/17
DATE: November 1, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Erica Ann Woodland Applicant
- and -
Stuart Grenville Kirkham Respondent
REASONS FOR DECISION
Malcolm J.