COURT FILE NO.: FS-20-16714
DATE: 20220607
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kirsy Nallely Garcia de Vasquez, a.k.a Kirsy Nallely Farcia Guzman, Applicant
AND:
Jose Armando Vasquez Mendoza, Respondent
BEFORE: M. Kraft, J.
COUNSEL: Glenda Perry, In Person
Respondent, did not attend
HEARD: In writing, May 20, 2022
REASONS FOR DECISION
M. Kraft, J.
Nature of Proceedings:
[1] The parties were married on March 29, 2004 in Nagua, Dominican Republic. They have two children: Joshua, a 16-year-old son and Jonathan, a 13.5-year-old son.
[2] The husband sponsored the wife to come to Canada. She arrived in Canada on July 3, 2005.
[3] The parties were first separated for about 3 years, between March 2010 and early 2013. They reconciled in early 2013 and resumed living together with the children beginning in May 2013. The separated on a final basis on April 9, 2016.
[4] During the parties’ first separation in 2010, the husband started a simple divorce proceeding, court file number FS-10-360469. A divorce order was issued on April 29, 2011. The wife deposes that she was not served with the divorce application or the divorce order until the summer of 2016, after the parties separated for the final time.
[5] The wife issued the within application on an urgent basis on June 4, 2020, because the husband stopped paying her voluntary child support payments in the spring of 2020.
Relief Sought by the Wife
[6] This matter proceeded by way of an uncontested trial. The wife seeks the following relief:
a. An order that she have sole decision-making responsibility for the parties’ two children of the marriage;
b. An order that the two children reside primarily with her and that the husband have liberal and generous parenting time, provided the children are in his care and not in the care of a third party during his parenting time;
c. An order that the husband shall not speak ill of the wife or about the court proceedings in the presence of the children;
d. An order that if either of the children need emergency medical care while with one parent, that parent will promptly notify the other of the emergency;
e. An order permitting the wife to travel internationally with the children without the need for the husband’s prior consent or signature;
f. An order permitting the wife to apply for and renew all of the children’s government issued identification documents, including but not limited to Canadian and/or Dominican passports, health-cards, and birth certificates, without the consent or signature of the husband;
g. An order that the wife be the custodian of the children’s government-issued identification documents;
h. An order that the husband pay ongoing child support to her commencing June 1, 2022, in the sum of $1,386 a month based on an imputed income to him of $93,171.57 a year for two children pursuant to the Child Support Guidelines, SOR/97-175(“CSG”);
i. An order that the husband pay arrears of child support to the wife in the fixed sum for the period May 2016 to January 1, 2022, based on imputed income to the husband of $78,000 a year for 2016, 2017 and 2018; an income of $79,624 for 2019, as reflected in his 2019 income tax return; and an imputed income of $93,171.57 for 2020, 2021 and 2022; payable at the rate of $200 a month in addition to the husband’s monthly child support referred to in h. above until the arrears have been paid in full;
j. An order that the husband pay the wife the sum of $100 a month, representing his 73% proportionate share of the oldest child’s orthodontic expense, commencing June 1, 2022, until the sum of $1,637 is paid in full;
k. An order that the husband pay the wife the sum of $175 a month, representing his 73% proportionate share of the youngest child’s orthodontic expense, commencing June 1, 2022, until the sum of $4,785.15 is paid in full;
l. An order that the husband shall maintain his medical, extended health and dental coverage through his employment for the two children so long as it is available to him for their benefit and that he reimburse the wife for all amounts recovered by him for expenses she incurred for the children;
m. An order that the husband shall keep and maintain in good standing a life insurance policy, naming the wife as beneficiary, in the amount of $100,000 to secure his child support obligations for the two children.
n. An order that the husband shall maintain his policy premiums when due until the children are no longer a child or children of the marriage pursuant to the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.);
o. For as long as child support is to be paid, an order that the parties provide each other with updated income disclosure annually, within 30 days of the anniversary date of this order, in accordance with s. 24.1 of the CSG;
p. An order that the husband pay his proportionate share of the children’s ongoing s.7 expenses, provided he consents to the expense in advance of it being incurred;
q. An order requiring the husband to add the wife, as a joint account holder with respect to the RESP accounts held at Scotiabank of which the children are the beneficiaries; and
r. An order that each party contribute the sum of $50 a month for each child, totalling $100 a month toward the children’s RESP accounts until each child reaches the age of majority.
[7] Since the parties are former spouses of one another, the relief sought by the wife is pursuant to the Divorce Act, as corollary relief, which is defined in s.2(1) as a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or a parenting order.
Litigation History
[8] After the wife issued this urgent application on June 4, 2020, on account of the husband ceasing making child support payments to her, pursuant to the Endorsement of Shore, J., dated June 5, 2020, the matter was directed to an urgent case conference.
[9] On June 16, 2020, the parties attended an urgent case conference before Czutrin, J. Although the husband attended the conference, by zoom, he did not file any material. Czutrin, J. ordered the husband to: a) pay without-prejudice temporary child support to the wife in the sum of $870 a month; b) provide disclosure with respect to his 2019 and 2020 income within 7 days; c) maintain the children’s monthly cell phone payments; d) confirm the status of the children’s RESP account; d) consider involving the OCL (for both parties); and e) file his responding materials (Answer and Form 35.1 Affidavit) and sworn financial statement.
[10] The husband did not comply with the order of Czutrin, J. He did not deliver any responding material nor did he make any temporary child support payments to the wife. He did, however, provide some disclosure to the wife with respect to his 2019 income. The husband completed a financial statement that was unsworn and only partially competed. The husband’s 2019 Notice of Assessment and T4 demonstrate that his income in that year was $79,624. The husband also provided some pay stubs he received in 2020. Annualizing those pay stubs, the wife seeks that the husband be ordered to pay child support based on an annual imputed income of $93,171.57 for 2020, 2021, 2022 and ongoing.
[11] On July 22, 2020, the wife’s lawyer, Mr. Cartaya wrote to the husband requesting financial disclosure and his responding materials, asking him to comply with the Order of Czutrin, J., dated June 16, 2020, and file his responding material by August 1, 2020. The husband was sent a blank electronic copy of Form 10: Answer and Form 35.1: Affidavit. The husband did not respond.
[12] Given the husband’s non-participation in these proceedings, the wife filed a Form 23C:Affidavit for Uncontested Trial, sworn on October 5, 2020; a financial statement, sworn on October 5, 2020; a draft order; and a draft SDO, asking that the matter proceed by way of an uncontested trial.
[13] The husband was served with the wife’s Form 23C: Affidavit for Uncontested Trial, draft order, draft SDO and financial statement on October 27, 2020.
[14] On August 23, 2021, the wife filed an updated Form 23C, Form 35.1 sworn on September 8, 2020 a draft order and a draft SDO.
[15] On October 14, 2021, the matter came before Kimmel, J. as an uncontested trial in writing. In her Endorsement, Kimmel, J. stated that she was not prepared to make a decision on the relief sought by the wife given that the affidavit evidence, although updated in August 2021, mirrored the wife’s initial Form 23C, sworn on October 5, 2020, and the court had no substantive update as to what had transpired, if anything, between the time the wife first filed her affidavit, sworn on September 8, 2020, and October 14, 2021. Kimmel, J. gave the husband one last chance to address his default. Accordingly, on October 14, 2021, Kimmel, J. made the following orders:
a. The wife’s uncontested trial was to be adjourned;
b. If the husband remains in default and the wife continues to wish to proceed by way of an uncontested trial, the wife was directed to serve the husband on or before November 30, 2021, with the recently filed Form 23C, Form 35.1, a draft court order; a draft SDO; her supplementary affidavits; her factum and a copy of the Kimmel, J. endorsement;
c. If the wife does not file any further material by November 30, 2021, the wife was to be deemed to have abandoned her request for an uncontested trial, without costs;
d. If the wife does file further material by November 30, 2021, then:
i. If the husband responds by rectifying his default or requesting the opportunity to respond notwithstanding his continuing default, the wife is to request an urgent case conference to seek directions from the court before the matter proceeds by way of an uncontested trial; or
ii. If the husband does not respond within two weeks of being served with the wife’s materials, then the wife may, with reference to the endorsement, ask the family trial office to put the matter before the court for consideration in writing.
[16] On December 6, 2021, Kimmel, J. extended the November 30, 2021 deadline within which the wife could file her updated affidavit material to January 31, 2022.
[17] On December 15, 2021, the husband was served with a Notice of Change in Representation, setting out that the wife had retained Glenda S. Perry. Ms. Perry also re-sent the June 16, 2020 Endorsement of Czutrin, J., the Endorsement of Kimmel, J., dated October 14, 2021 and Kimmel, J.’s Order, dated December 6, 2021. She asked the husband to: provide a copy of his 2020 income tax return and notices of assessment; provide proof of his gross income for 2021 from all sources, such as paystubs; and provide particulars about the children’s RESP, including a statement showing the balance and all deposits. Ms. Perry enclosed a blank financial statement in her letter, along with a list of resources the husband could access as a self-represented litigant.
[18] On January 17, 2022, Ms. Perry wrote to the husband again, asking him to respond to her December 15, 2021 correspondence, and she re-sent him the wife’s material filed in support of the relief sought in the uncontested trial.
[19] The husband did not respond within two weeks to the further material the wife served and filed on January 31, 2022. As a result, the wife asked that the matter return to a judge for consideration as an uncontested trial. In addition to the wife’s initial Form 23C, sworn on October 5, 2020, and her updated Form 23C, sworn on August 23, 2021, the wife filed an updated affidavit, in support of the relief she seeks in this uncontested trial, sworn on January 31, 2022.
[20] The matter came before me on May 20, 2022 in writing. This is my Order and Reasons for same.
Issue One: Parenting
[21] As outlined above, the wife seeks: to have sole decision-making responsibility for the parties’ two children of the marriage; that the two children reside primarily with her and that the husband have liberal and generous access provided they are in his care during his parenting time and not in the care of a third party; an order permitting her to travel internationally with the children without the need for the consent of the husband; and an order to renew the children’s government-issued documentation without the need for the consent of the husband.
The Law
[22] Section 16 of the Divorce Act provides that the court shall only consider the best interests of the children in making a parenting order. The primary consideration the court must make in determining the children’s best interests is the children’s physical, emotional and psychological safety, security and well-being: s.16(2).
[23] The best interests factors to be considered by the court are set out in s.16(3) of the Divorce Act which is reproduced below:
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(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 spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(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 cooperate, 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 cooperate 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.
Application of the Law to the Facts
[24] The children have resided primarily in Toronto with the wife since the separation.
[25] When the parties lived together, the wife worked on a part-time/sporadic basis so she could look after the parties’ two children and household. The husband worked full time and supported the family financially.
[26] When the first separation occurred, between March 2010 and early 2013, the children remained living primarily with the wife.
[27] After the final separation in April 2016, the children have remained in the wife’s primary care. The husband has generally limited his involvement with the children and left the decision-making responsibility for the children to the wife.
[28] Both children are under the care of a family doctor. The oldest child suffers from allergies which are managed by his doctor. Both children have been diagnosed with Obsessive Compulsive Disorder (“OCD”). The youngest child was in the hospital for one week in June 2021, as he was suffering from a mental health crisis. The wife is the parent who arranges all of the children’s medical and dental appointments. The wife apprises the husband of the children’s emotional and physical health.
[29] The oldest child is in Grade 11 and the younger child in Grade 8. Both children have individual educational plans. The wife is the parent who decides which schools both children should attend and she is the parent who is in regular and ongoing communication with both children’s schools to arrange for their support. The husband has not attended any school meetings, at his choice.
[30] The children are closely connected and bonded to their maternal grandmother and aunt.
[31] The children have parenting time with the husband on the weekends, in accordance with the husband’s work schedule. The children do not have overnight parenting time with the husband, as per his wishes.
[32] There was no evidence submitted by the wife as to the children’s views or preferences.
[33] Based on the above, I find that it is in the children’s best interests for the wife to have primary care of the children and for her to have sole decision-making responsibility for the major decisions that impact the children, for the following reasons:
a. Given the children’s needs, their ages and stages of development, the wife is the parent best able to have primary care of them given the history of care. This will ensure the children’s need for stability. Further, given that both boys have been in the primary care of the wife since the separation, they are closely bonded to her and to their maternal aunt and grandmother, which will continue if the wife has primary care of them.
b. The wife has not restricted the husband in attending the children’s activities, school events, or medical/dental appointments. She supports the husband accessing the third-parties involved with the children to obtain whatever information he wishes about them.
c. The wife acknowledges that she and the husband experience difficulties communicating. By way of example, she deposes that the husband blocked his cell phone in September 2021 so the wife could not reach him. However, notwithstanding these communication difficulties, the wife is willing to support the maintenance of the children’s relationship with their father, which is demonstrated by the fact that the children spend time with the husband as he wishes. The wife has not put any barriers in place to the husband having access to information about the children or in his having parenting time with the children;
d. Generally, the husband has parenting time with the children on weekends. There is no specific parenting time schedule that is followed. The husband’s parenting time is dependent on his work schedule. He generally picks up the children in the afternoon on Saturdays and Sundays and on some Fridays, after work. The children do not have overnight parenting time with the husband, at his choice. The wife does not restrict the children in spending time with the husband. She does not insist that the children return to her home for overnights. That decision is one that the husband has made. If the husband wishes to have overnight time with the children, the wife will not restrict that from happening;
e. In terms of the children’s needs, it is clear that the wife has both the ability and willingness to care and meet both children’s needs. After the parties’ oldest son was diagnosed with OCD by a psychiatrist at Sick Kids Hospital during a virtual appointment, the wife arranged to obtain a second opinion from the children’s family doctor. The family doctor referred the child to a social worker who began therapy with him in February 2022. Similarly, the youngest child was diagnosed with OCD by a doctor at St. Joseph’s Health Centre. When the youngest child was admitted into Humber River Hospital with a mental health crisis in June 2021, a doctor there advised the wife that he does not believe the child has OCD but, rather, that he has been impacted by the relationship between the wife and husband. The youngest child had a follow up appointment at Humber River Hospital in February 2022. The wife attended her own follow up appointment at Humber River Hospital as a parent and she deposed that an appointment was scheduled for the father to attend at Humber River Hospital, but the husband missed the appointment;
f. The wife deposes that the husband has never attended the children’s medical or dental appointments, school meetings or activities, despite the fact that he is able to do so. She believes it is important for the children to have a meaningful relationship with the husband but the husband exercises parenting time with the children sporadically, at his behest; and
g. The wife does not allege any family violence. However, she does describe the husband as threatening, angry and hostile toward her when they communicate. The children have been upset after the separation when hearing their father speak negatively about the mother and, as a result, the wife deposes that she repeatedly asked the husband not to speak negatively about her in front of the children.
[34] In light of the above, an order shall be made that neither party denigrate the other parent nor speak negatively about the other in the presence of the children.
[35] I find that it is in the children’s best interests for: the wife to have sole decision-making responsibility in connection with the major decisions that impact the children; that the children continue to reside primarily with her; and that the husband have generous and liberal parenting time with the children, provided the children are in his care, such time to be organized by the husband and the children directly.
[36] The wife has no intention of changing the children’s residence from Toronto. She seeks an order to enable her to obtain the government-issued documentation for the children, such as a health card and/or passport, without the need to obtain the husband’s consent. The wife maintains that the husband is angry and hostile toward her. She deposes that he is not cooperative when she asks him for his consent to sign the passport application for the children. Both children’s Canadian Passports expired in November 2019.
[37] As a term of a parenting order, I find that it is in the children’s best interests for the wife to be the custodian of the children’s government-issued documentation and for her to be able to apply for and review such documentation without the need for the husband’s consent. The wife shall provide the husband with copies of the children’s health cards and notify him when she renews the children’s passports.
[38] Although the children are Canadian citizens, the wife is from the Dominican Republic. The children have a cultural connection to the Dominican Republic and many family members and family friends who reside there. The husband also has family in the Dominican Republic. The wife wishes to travel with the children to the Dominican Republic in an effort to continue to expose them to her culture, heritage, her country of origin and to visit her family and friends. She has no immediate plans to travel but wishes to be able to travel with the children without the need to obtain the husband’s consent to such travel.
[39] With respect to travel, the wife shall be permitted to travel with the children to the Dominican Republic, the United States and internationally, without the need for the husband’s consent. However, if the wife plans to travel with the children, she is to provide the husband with written notice of her intention to travel, and provide a copy of a complete itinerary to the husband five days in advance of any intended travel, including details of where the children will be travelling, where the children will be staying when they travel and a telephone number where the children can be reached while they are travelling.
Issue Two: Child Support
[40] The wife is seeking both prospective and retroactive child support from the husband.
The Law
[41] Section 15.1 of the Divorce Act provides the court with jurisdiction to make an order requiring a former spouse to pay child support for a child of the marriage, in accordance with the CSG, both prospectively and retroactively: Divorce Act, s.15.1(1) and (3). The parties’ incomes for child support purposes are to be determined in accordance with ss.16-20 of the CSG.
[42] As outlined above, the only definitive income information provided by the husband to the wife was with respect to his income earned in 2019 and part of 2020. He failed to provide income information when under a legal obligation to do so. He did not comply with the Order of Czutrin, J., dated June 16, 2020. Nor did he comply with the Order of Kimmel, J., dated October 18, 2021.
[43] Section 19 of the CSG allows the court to impute an annual income to a payor that it considers appropriate in the circumstances. Specifically, s.19(1) of the CSG states: “The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following: (f) the spouse has failed to provide income information when under a legal obligation to do so.”
[44] Further, s.23 of the CSG states that the Court may draw an adverse inference against the spouse who failed to comply and impute income to that spouse in such amount as it considers appropriate.
[45] The wife also seeks an order requiring the husband to contribute toward the uninsured cost of both children’s orthodontics by way of retroactive and prospective s.7 expenses.
[46] The wife seeks retroactive child support back to the date of separation, April 2016: s.15.1(4) of the Divorce Act.
[47] D.S.B. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, remains the leading case on retroactive child support. This is a case where retroactive child support arises from an original application made by the wife, where there was a previous agreement between the parties respecting child support and the wife seeks to vary and increase child support. In an original application for retroactive support, the exercise of discretion regarding the date for retroactivity and quantification of the proper amount of support for each year since the date of retroactivity, as calculated in accordance with the CSG, is described in Michel v. Graydon, 2020 SCC 24, 449 D.L.R. (4th) 147.
[48] An order for retroactive child support holds payors to their existing and unfulfilled support obligations: Michel, at para. 25.
[49] Child support is the right of the child which survives the breakdown of the parties’ marriage and, in this case, their divorce. Child support should, as much as possible, provide these children with the same standard of living they enjoyed when their parents were together. The amount of child support owed by the husband is dependent entirely on his income, as the payor parent. As D.B.S. outlines, it is the responsibility of both parents to ensure that the husband satisfied his actual child support obligations. The goal in addressing child support is to ensure that the children benefit from the child support they are owed.
[50] As set out in Colucci v. Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183, it is no longer necessary to first ask whether retroactive relief is appropriate. As soon as a past material change in circumstance is established, which would result in different child support terms, if known at the time of the original agreement reached by the parties, there is a presumption of retroactivity: at para. 6.
Application of the Law to the Facts
[51] In the case at bar, there is a need on the part of the children and the wife for financial support. While the husband’s interest in certainty and predictability with respect to financial obligations is an interest to be considered, given that the husband underpaid child support for many years, and did not provide his income information to the wife, any interest he has in predictability takes a secondary seat to the children’s need for child support.
[52] Generally, the retroactive start date can be up to three years prior to the date on which formal notice or effective notice was given: Colucci, at para. 6. Notice can be formal, as in the date the wife commenced the within application, or informal, when the wife told the husband the amount of child support being paid is inappropriate. In the case at bar, the husband had notice by at least June 2020, when he stopped paying child support to the wife that she would be seeking child support from him. Accordingly, the wife would be entitled to go back 3 years from this notice, being June 2017. However, the date of effective notice is not necessarily relevant when a payor has engaged in blameworthy conduct: Michel, at para. 36.
[53] The wife explains that she was very intimidated by the husband, as he was in possession of his financial records and was very controlling toward her. She describes the husband’s communication style as aggressive, including him making threats toward her and yelling at her. Given that the wife’s first language is not English and she does not have the financial ability to go to court, she was intimidated by the husband.
[54] During the first separation (2010 – 2013), the husband was financially abusive toward the wife. Initially, the husband paid for the wife’s rent and food even though he had left the matrimonial home. However, in 2011, he stopped paying for rent and food and insisted that the wife apply for social assistance.
[55] She began this court case on June 3, 2020 because the husband continually threatened the wife that she would not receive any support from him unless she took him to court. Prior to starting the court case, the wife tried to discuss the matter and negotiate with the husband.
[56] In March 2020, the husband paid the wife child support in the sum of $1,093; in April 2020, he paid child support in the sum of $500 and in May 2020, he paid child support in the sum of $200. In June 2020, the wife retained Spanish speaking counsel through a legal aid certificate.
[57] Despite Czutrin, J.’s endorsement, dated June 16, 2020, that the husband would maintain, on a without prejudice basis, payments of child support of $870 a month pending further court order, the husband only made some payments.
[58] The wife seeks child support retroactive to April 2016, the date of separation. After separation, the wife submits the parties reached a verbal understanding that the husband would pay her child support in the sum of $870 a month. This agreement was reached without the assistance of counsel or financial disclosure. The husband stopped making these monthly payments to the wife on May 15, 2020. Sometimes the husband paid the wife by making weekly e-transfers of $100 with a final payment at the end of the month between $450 and $470.
[59] The husband initially paid the wife the child support in cash but commencing in May 2019, the husband made his child support payments by e-transfer.
[60] The wife’s application was issued on June 4, 2020 and, as a result, the husband has had notice since at least June 4, 2020 that the wife would be seeking retroactive child support and that income be imputed to him at no less than $78,000 a year for 2016, 2017 and 2018. For 2019, the wife seeks that the husband be imputed with an income of $79,624, and for 2020 and ongoing, the wife seeks that the husband be imputed with an annual income of $93,1717.57.
The Husband’s Income
[61] The evidence on record is that the husband is employed by Sahara Holding (2004) Inc., located at 3751 Victoria Park Avenue, Toronto.
[62] The wife deposes that in 2014, the husband returned to work in the construction industry and he was earning about $70,000 to $80,000 a year. She deposes that she “vividly remember[s] seeing the [husband’s] 2014 or 2015 Income Tax Return where it indicated that [he] was earning an income of approximately $70,000”. Given that the husband has worked for his employer since 2014, she asks that his annual income be imputed at the rate of $78,000 for 2016, 2017 and 2018.
[63] The wife has attached as exhibits to her Form 23C, sworn on October 5, 2020 and on August 23, 2021, the following evidence of the husband’s income:
a. For 2020, copies of the husband’s paystubs for Sahara Holdings (2004) Inc. for the period June 14, 2020 to June 20, 2020; June 21, 2020 to June 27, 2020; and June 28, 2020 to July 4, 2020;
b. A letter dated January 6, 2020 from Edmund Yau, CHRL Human Resources, Sahara Holdings (2004) Inc, setting out the husband’s hourly income and confirming that the husband has worked as an employee for this company since September 2014; and
c. For 2019, a copy of the husband’s 2019 T4 and Notice of Assessment demonstrating that his income in 2019 was $79,624.
[64] In 2019, it is known that the husband earned $79,624.
[65] Based on the husband’s June 2020 paystubs, he was earning an hourly wage of $35.65, which corresponds to an income of $47,223.95 to that point in the year (Jan/20 – July/20 – 185 days), or an annualized income of $93,171.57. The 2020 paystubs produced by the husband demonstrate that his hourly rate increased from $34.96 to $35.65. Accordingly, the wife seeks an order imputing the husband with an annual income of $93,171.57 for 2020, 2021, 2022 and onward, as this is the best evidence of his income.
[66] Pursuant to s.15(1) of the CSG, a spouse’s annual income is determined by the court in accordance with ss.16-20.
[67] The starting point to determine annual income is the income tax return of a payor spouse: s.16 of the CSG.
[68] Where the court does not have that income information, s.19 of the CSG allows the court to impute such amount of income to a spouse that it considers appropriate in the circumstances, which circumstances include the spouse failing to provide income information when under a legal obligation to do so: s.19(1)(f) of the CSG.
[69] Based on the evidence on the record, I find that the husband’s income for the period 2016 to 2022 was as follows:
a. In 2016, he is to be imputed with an annual income of $78,000. That corresponds with a Table CSG obligation of $1,147 a month;
b. In 2017, he is to be imputed with an annual income of $78,000. That corresponds with a Table CSG obligation of $1,147 a month until December 1, 2017, when the Table amounts changed to $1,182 a month;
c. In 2018, he is to be imputed with an annual income of $78,000. That corresponds with a Table CSG obligation of $1,182 a month;
d. In 2019, his income tax return and notice of assessment, confirms the husband earned $79,624. That corresponds with a Table CSG obligation of $1,205.11 a month;
e. In 2020, he is to be imputed with an annual income of $93,171.57. That corresponds with a Table CSG obligation of $1,388.09 a month;
f. In 2021, he is to be imputed with an annual income of $93,171.57. That corresponds with a Table CSG obligation of $1,388.09 a month;
g. In 2022, he is to be imputed with an annual income of $93,171.57. That corresponds with a Table CSG obligation of $1,388.09 a month;
[70] Using the income figures set out above, the below chart compares what the husband did pay the wife in child support with what the husband ought to have paid the wife in child support pursuant to the Tables set out in the CSG:
| Year | Actual income | CSG Table Amount | What the Husband paid in child support | Amount owing |
|---|---|---|---|---|
| 2016 April to Dec | $78,000 | $1,147/mo. $10,323/yr. (9 mo.) |
$8,550 | ($1,773) |
| 2017 | $78,000 | $1,147 (Jan. – Nov) $1,182 (Dec) $13,799/yr. CSG were updated for the period No. 22/17 |
$10,440 | ($3,359) |
| 2018 | $78,000 | $1,182/ mo. $14,184 /yr. |
$10,440 | ($3,744) |
| 2019 | $79,624 | $1,205.11/mo. $14,461.32 / yr. |
$8,510 | ($5,951.32) |
| 2020 | $93,171.57 | $1,388.09 / mo. $16,657.08 / yr. |
$8,510 | ($8,147.08) |
| 2021 | $93,171.51 | $1,388.09/mo. $16,657.08 / yr. |
$10,593 | ($6,064.08) |
| January 2022 | $92,177.51 | $1,388.09/mo. | $870 | ($518.09) |
| Total Arrears April 1, 2016 to January 31, 2022 | $87,469.57 | $57,913 | $29,556.57 |
[71] Accordingly, based on the above chart, the wife claims that the husband owes her retroactive child support in the sum of $29,556.57 for the period April 2016 to and including January 31, 2022.
[72] For the period February 1, 2022 to May 31, 2022, onward, the wife seeks child support of $5,552.36, being $1,388.09 x 4 months. The husband has paid no child support to the wife in these four months.
[73] Accordingly, the total Table child support arrears owing by the husband to the wife for the period April 1, 2016 to and including May 31, 2022, is $35,108.93, after giving him credit for what he has paid to the wife.
[74] In addition to monthly child support, the wife seeks that the husband pay his proportionate share of the uninsured portion of both boy’s orthodontic expenses, retroactively, as s.7 expenses.
[75] In 2020, the wife was employed by Life Labs until September 2020. Her 2020 income tax return shows that her line 15000 income was $35,447. Her 2019 Notice of Assessment sets out that the wife earned $28,818 in 2019.
[76] The wife did not work from October 2020 to November 2021. Beginning on December 9, 2021, the wife started working part-time as a personal support worker in the nursing department at Deerwood Creek Care Community Nursing Home. She earned $3,440.86 gross in 2021. The wife’s paystubs confirm that she is currently earning $22.53 an hour, plus a supplement of $3 an hour from the Ontario government. She works 32 hours a week, and hopes to work more hours, if she is able to secure additional hours. If the wife works 32 hours a week, 52 weeks a year, earning $25.53 an hour, that will amount to an annual salary of $42,481.92 in 2022.
[77] Using the parties’ combined incomes of $121,989.57 in 2019 ($28,818 for the wife and $93,171.57 for the husband), the husband’s proportionate share of s.7 expenses would be 76%.
[78] Using the parties’ combined incomes of $128,624.57 in 2020 ($35,447 for the wife and $93,171.57 for the husband), the husband’s proportionate share of s.7 expenses would be 72% in 2020.
[79] Using the imputed annual income of $93,171.57 for the husband and $42,481.92 for the wife in 2022, their combined income would be $135,659.49, making the husband’s proportionate share of s.7 expenses 68.6 or 67% in 2022.
[80] An invoice from the children’s orthodontist, dated December 15, 2021, confirms that Joshua had braces at a total cost of $6,900, of which the husband paid $2,000 and the wife paid $4,900. The wife deposes that of the $4,900 she paid to the orthodontist, she sent the receipts to the husband and he submitted them to his extended medical/dental insurer. The husband should have paid 72% of this expense, or $4,968. Accordingly, the husband owes retroactive s.7 expenses for Joshua’s orthodontia of $1,637, taking into account the reimbursement from insurance, and after giving him credit for having paid $2,000. The wife seeks an order that the husband pay the retroactive s.7 expenses at a rate of $200 a month.
[81] An invoice from the children’s orthodontist, dated December 15, 2021, confirms that Jonathan has not yet received orthodontic treatment. The estimated total cost of this treatment will be $6,555. The wife paid an initial amount of $2,000 and has arranged to make monthly payments of $239.16 over 18 months, totalling $4,305. Using the 2022 income figures for the parties referred to in para. [78] above, the husband’s proportionate share of this total expense is 67% or $4,391.85. The wife seeks an order that the husband pay this s.7 expenses on a prospective basis at a rate of $175 a month.
[82] In terms of future s.7 expenses, the wife seeks an order that the parties share these expenses proportionate to their earned incomes, provided both parties consent to the expense in advance, in writing, consent not to be unreasonable withheld.
[83] The children have suffered hardship according to the wife. They have no luxuries in their lives. They do not take vacations. All of the money she receives is used for basic living expenses. By contrast, the husband takes at least 1-2 vacations annually.
[84] In applying the four D.B.S. factors to the case at bar, I find as follows:
a. The wife commenced the within application in June 2020. She did not bring an application for child support when the parties separated in 2016 because the husband was voluntarily paying monthly child support to her. English is not her first language. She had no experience in the family court system. She was reluctant to commence litigation with the husband and her interactions with him had been conflictual, with him having made threats to her. Finally, the husband did not make income disclosure to the wife. All of these factors provide a reasonable explanation as to why the wife did not start an application for child support at the time of separation, waiting until the husband unilaterally ceased paying child support in the spring of 2020. In Michel, the court held, at para. 85, that a delay is not considered to be prejudicial if it was motivated by: a) a fear of reprisal or violence from the payor; b) prohibitive costs of litigation or fear of protracted litigation; c) lack of information or misinformation over the payor’s income, since factors such as these, and others, raise issues of impractibility and inaccessibility to justice while also raising fear of danger: at para. 86. Since the reason for the delay in starting an application was both the lack of information the wife had about the husband’s income and a fear of his controlling and threatening reaction, I find that the there was a reasonable excuse for the wife’s delay in starting the proceeding;
b. The husband behaved in a blameworthy manner in relation to child support because when the wife asked him to pay child support, after he unilaterally stopped doing so, he was threatening and controlling and told her she would have to sue him before he gave her disclosure about his income or paid her support. He ignored the Order of Czutrin, J., in failing to provide income disclosure to the wife and he failed to pay the without prejudice child support amount. He also ignored the Endorsement of Kimmel, J., dated October 6, 2021 and her Order, dated December 6, 2021. He ignored correspondence from the wife’s counsel, seeking financial disclosure and asking him to participate in these proceedings. Essentially, the husband’s continual failure to participate in these proceedings, beyond the initial urgent case conference, constitutes blameworthy conduct;
c. There is no doubt that the past circumstances and present circumstances of the children are such that they would benefit from a retroactive child support award. Both children have experienced hardship and been disadvantaged as a result of the husband’s failure to pay child support. One such obvious example is the fact that the younger son has not had his braces put on, and the wife has struggled to meet the children’s basic needs. The orthodontist wrote a letter, dated December 15, 2021, confirming that the oldest child, Joshua had received braces, the total cost of which was $6,900; of which the husband contributed $2,000 and the wife contributed $4,900;
d. There is no evidence that there will be any hardship to the husband if he were required to pay retroactive child support. As set out in Michel,
i. If there is the potential for hardship to the payor, but there is also blameworthy conduct which precipitated or exacerbated the delay, it may be open to the courts to disregard the presence of hardship: at para. 124.
ii. Further, hardship may be addressed by the form of payment: at para. 124.
iii. While the focus is on hardship to the payor, that hardship can only be assessed after taking into account the hardship which would be caused to the child and the recipient parent from not ordering the payment of sums owing but unpaid: at para. 125.
iv. It must be taken into account that the payor had the benefit of the unpaid child support for the full time in which it was unpaid and such monies may have funded a preferred lifestyle or the very purchase of property which may now need to be sold: at para. 125. This is a crucial part of the equation: at para. 126.
[85] There is no evidence on the record, that a retroactive order will cause hardship to the husband. The wife has deposed that the husband took vacations in 2020 and 2021, when the children were not receiving child support from him. He benefited from not paying child support. Any potential hardship can be addressed by the court making an order that he pay the retroactive child support over time.
Medical/Dental Insurance
[86] The wife seeks an order that the husband maintain the two children as beneficiaries under his extended medical/dental health plan, provided to him by his employer, for as long as they are children of the marriage. The evidence on record is that the husband has extended health benefits for the children, as the wife deposed the receipts for the oldest child’s orthodontic treatment was submitted to his insurer and the parties were reimbursed.
[87] Pursuant to s.16(4) of the Divorce Act, I order the husband to maintain the children as beneficiaries under his health insurance plan, provided to him by his employer, for as long as this plan is available to him, for as long as he is required to pay child support for them.
Life Insurance
[88] The wife also seeks an order requiring the husband to maintain a life insurance policy with a face value of $100,000, naming her as the beneficiary as security for his child support obligation. There is no evidence on the record as to whether the husband has a term or whole life insurance policy. Accordingly, I am not persuaded that I can make an order requiring the husband to provide security for his child support obligation without any evidence as to whether such security exists.
RESP Accounts
[89] With respect to the children’s RESP, the wife seeks an order that the husband add her as a joint account holder of the children’s RESP accounts held at Scotiabank. She also seeks information about the balance in these accounts and any other RESP account of which Joshua and/or Jonathan are beneficiaries. Finally, she seeks an order that each party contribute $50 per child per month, for a total of $100 a month toward an RESP account for the children, until each child reaches the age of majority.
[90] There is no evidence on the record as to whether each party or one party contributed toward the existing RESPs for the children. As a result, I cannot find that the husband ought to add the wife as a joint account holder of the children’s RESP accounts without further evidence on this point and without knowledge as to the balance in the RESP accounts on the date of separation.
[91] Section 7(1) of the CSG provides the court with the ability to provide for an amount to cover all or a portion of certain expenses, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to separation. Contributions to an RESP do not fit into any of the categories of s.7 set out in s.7(1)(a) – (f). While RESPs are savings vehicles, earmarked for post-secondary education for a child, they are not necessarily required to be used for that purpose. Parents cannot be compelled by a court order to contribute into an RESP, absent an agreement: see C.S. v. D.A.S., 2020 ONCJ 16, at para. 143; Popovski v. Pirkova, 2017 ONSC 2363, at para. 49; and Smith v. Smith, 2011 NSSC 269, at para. 80.
[92] However, it is clear that the parties made a decision to set up an RESP account for the children and there is good reason that they ought to continue to contribute to such an RESP to defray the costs of the children’s post-secondary educational costs. An RESP is an asset that was created by one or the other parent. The wife did not tender any evidence about the RESP plan documents or statements. Without such evidence, and evidence as to what the balance of the RESP account(s) was/were at the time of separation in April 2016, I cannot make a finding as to which party or whether both parties contributed to the existing RESP. The wife is free to make monthly contributions to an RESP for the children which will then be used toward her proportionate share of the children’s post-secondary educational expenses.
Disposition
[93] Based on the above, I make the following final orders:
a. Pursuant to ss.16(7), 16.1(1), 16.1(4) and 16.1(5) of the Divorce Act, the applicant shall have sole decision-making responsibility for Joshua Vasquez Garcia, born September 7, 2005, and Jonathan Vasquez Garcia, born June 1, 2008;
b. Pursuant to ss.16(7), 16.1(1), 16.1(4) and 16.1(5) of the Divorce Act, the children shall reside primarily with the applicant;
c. Pursuant to ss.16(6), 16.1(1), 16.1(4) and 16.1(5) of the Divorce Act, the respondent shall have liberal and generous parenting time with the children, provided the children are in his care during his parenting time, and not third parties, such time to be organized directly between the husband and the children;
d. Pursuant to s.16.1(5) of the Divorce Act, neither party will denigrate the other or speak ill about each other in the presence of the children;
e. Pursuant to s.16.1(5) of the Divorce Act, if either child requires emergency medical care while in the care of either parent, that parent will notify the other of the emergency;
f. Pursuant to s.16.1(5) of the Divorce Act, the applicant shall be permitted to travel to the United States, the Dominican Republic and/or internationally with the children, without first obtaining the respondent’s consent, provided she sends him notice of her itinerary within five days of any intended travel;
g. Pursuant to s.16.1(5) of the Divorce Act, the applicant shall be permitted to renew all government issued identification for both children, including but not limited to, passports, health cards and birth certifications, without the need for the respondent’s signature or consent.
h. Pursuant to s.16.1(5) of the Divorce Act, the applicant shall be the custodian of all government-issued identification for both children;
i. Pursuant to ss.15.1(1), 15.1(2) and s.15.1(4) of the Divorce Act, the respondent shall pay the applicant retroactive child support in the sum of $35,108.93 for the period April 1, 2016 to and including May 31, 2022, at the rate of $585.15 a month for 60 months, until the total arrears of table child support is paid. The retroactive child support ordered has been made on the following bases:
i. For April 1, 2016 to November 30, 2017, the respondent should have paid the applicant child support in the sum of $1,147 a month based on an imputed income of $78,000;
ii. For December 1, 2017 to and including December 31, 2017, the respondent should have paid the applicant child support in the sum of $1,182 a month, based on an imputed income of $78,000;
iii. For January 1, 2018 to and including December 31, 2018, the respondent should have paid the applicant child support in the sum of $1,182 a month, based on an annual imputed income of $78,000;
iv. For January 1, 2019 to and including December 31, 2019, the respondent should have paid child support in the sum of $1,205.11 based on an income of $79,624 as reflected in his 2019 Notice of Assessment;
v. For January 1, 2020 to and including January 1, 2022, the respondent should have paid the applicant child support in the sum of $1,388.09 based on an annual imputed income of $93,171.57;
vi. For the period February 1, 2022 to May 31, 2022, the respondent should have paid the applicant child support in the sum of $5,552.36, being $1,388.09 x 4 months;
vii. The respondent has been given credit for having paid a total of $57,913 in monthly child support to the wife during the period April 1, 2016 to and including January 31, 2022.
j. Pursuant to ss.15.1(1), 15.1(2) and s.15.1(4) of the Divorce Act, the respondent shall pay the applicant monthly child support in the sum of $1,388.09 for the two children of the marriage, based on an annual imputed income of $93,171.57 commencing June 1, 2022, and on the first day of each following month until further court order or agreement of the parties.
k. Pursuant to ss.15.1(1), 15.1(2) and s.15.1(4) of the Divorce Act, the respondent shall pay $1,637 to the applicant, as his proportionate share [being 72%] for the orthodontic expenses for Joshua Vasquez Garcia born September 7, 2005. This shall be paid by way of monthly payments of $100.00 per month.
l. Pursuant to ss.15.1(1), 15.1(2) and s.15.1(4) of the Divorce Act, the respondent shall pay his proportionate share, being 67% of the uninsured portion of orthodontic expenses for Jonathan Vasquez Garcia, born June 1, 2008, by way of monthly payments of $175.00 per month until such amount is paid in full.
m. Pursuant to ss.15.1(1), 15.1(2) and s.15.1(4) of the Divorce Act, the respondent shall pay his proportionate share, being 67% of the children’s future s.7 expenses, provided he consents to such expenses in advance in writing, such consent not to be unreasonably withheld.
n. Pursuant to s.15.1(4) of the Divorce Act and the Family Law Rules, O. Reg. 114/99, the respondent shall produce copies of (a) the children’s RESP accounts to the applicant; and (b) copies of any and all life insurance policies he owns, including information as to the beneficiaries of such policies and the face value of such policies, within 30 days of the date of this order.
o. Pursuant to s.15.1(4) of the Divorce Act, the Respondent shall maintain his medical, extended health and dental coverage through his employment for the children, Joshua Vasquez Garcia born September 7, 2005, and Jonathan Vasquez Garcia, born June 1, 2008, for so long as it is available to him for their benefit and that he shall reimburse the Applicant for all amounts recovered by him for expenses incurred by the Applicant for the children.
p. For as long as child support is to be paid, the payor and recipient, if applicable, must provide the updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with s.25(1) of the CSG.
q. Unless the Support Order and Support Deduction 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 Support Order shall be paid to the Director, who shall pay them to the party to whom they are owed.
June 7, 2022 __ M. Kraft, J.
COURT FILE NO.: FS-20-16714
DATE: 20220607
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Kirsy Nallely Garcia de Vasquez, a.k.a Kirsy Nallely Farcia Guzman
Applicant
– and –
Jose Armando Vasquez Mendoza
Respondent
REASONS FOR DECISION
Kraft J.
Released: June 7, 2022