Issue Requiring Adjudication:

[1] Does the father owe any retroactive child support to the mother for the time before she gave him effective notice of her request for disclosure and increased support?

[2] The Applicant mother asks to go back in time from January 1, 2016 to October 2019, three years and ten months before she asked the Respondent father for disclosure and increased support. She seeks an additional $67,920 table child support plus $6,200 for s. 7 expenses, being one half of the total s. 7 expenses of $12,408.89 for that time period. The father disputes he owes her anything. He paid the agreed upon child support in full. He agreed to increase child support starting November 2019, the month following the effective notice date by the mother.

Settlement since Effective Notice forward

[3] Shortly before trial, the parties settled increases to child support obligations from November 1, 2019 forward. Starting December 1st, 2021, the father will pay ongoing table child support of $2,117 per month, and 71% of the children’s s. 7 expenses, on advance written notice and consent (consent not to be unreasonably withheld). This S. 7 process mirrors their old agreement. They agree on their incomes. As agreed, the father paid the mother an additional $9,525 support based on his increased income for the period November 1st, 2019 to November 1st, 2021, being the time from notice to the father for disclosure. The father borrowed the $9,525 and paid the mother the next day by certified cheque, and he contributed a further $534.50 towards recent s. 7 expenses. There are no arrears.

Family Overview

[4] The parties had a ten-year relationship. They cohabited for five years, then married in 2001. They separated on January 20th, 2005. The parties raised five children. The two subject children of this proceeding were born during their union. They share joint custody of these two boys. The older boy is now 19 years of age with many limitations and challenges related to his autism spectrum diagnosis. He attends St. Lawrence College in his first year of post-secondary studies. He receives ODSP of $1,169 per month, effective March 2020 when he turned 18. The younger boy is 17 years old, in grade 12. He is also on the autism spectrum with some additional limitations and challenges. He will likely qualify for ODSP next year but I have not factored this into my decision. The parents disagree about the extent of his disability. The father disputes that the mother shared an important re-assessment. It remains unclear if this has now been delivered, so I require her to give him a copy of the report plus any future reports relating to either child.

[5] The father is self employed and operates a successful car repair shop. The mother works for the government.

[6] The father is remarried to his current business partner. She owns various assets and is entitled to do so. The mother’s sister lives with her from time to time. Counsel raised these points and so I acknowledge them.

[7] During their relationship, the father stood in the place of a parent to the mother’s three children from her former marriage. This Respondent father supported all five children. Those three older children are now adults.

Separation Agreement and Litigation History

[8] Eleven and a half years ago, the parties mediated issues arising from the breakdown of their relationship. They signed a comprehensive Separation Agreement dated June 10th, 2010 (the “Agreement”), about five years after their separation.

[9] Each party was well represented by their own experienced counsel. The Agreement was plainly written, not in legalese from some boilerplate template. There was full disclosure. There is no allegation of unfairness. The evidence is that each understood their obligations and entitlements under this Agreement. There is no evidence that either party was under duress or coercion. Both parents are literate. In addition to a material change in circumstances clause, the Agreement was clear about the parties’ child support obligations, s. 7 expense claim protocol, disclosure, optional annual review of child support, dispute resolution process, joint parenting responsibilities and communication. By a separate covenant, they specifically agreed to be bound by the agreement.

[10] The relevant provisions of the Agreement include:

a. Section 5.11: Once a year, if either party asks in writing, Brian and Sherry will review the child support arrangements in this Agreement and, if they do not agree about any change, they will use the section of this Agreement entitled "Dispute Resolution" to resolve the issue(s).

b. Section 5.12:

If either party asks in writing for disclosure, both will, in writing, provide the following information to the other, within 30 days of the request:

i. the documents required in s. 21(1) of the Guidelines that have not previously been provided,

ii. current information about the children's special or extraordinary expenses,

iii. current information about a party's claim of undue hardship, if any, and his or her household's standard of living,

iv. details of Canada Child Tax Benefits or other child benefits received in the previous year and anticipated in the coming year, and

v. any other information needed to review child support. This may be asked for once a year.

c. Special and extraordinary expenses, Section 5.6:

i. The parties will only contribute to a child's special or extraordinary expenses if the parties consent to the expenses in advance, in writing. Neither party will unreasonably withhold consent. If the parties cannot agree, they will use the section of this Agreement entitled "Dispute Resolution" to resolve this issue.

d. Mandatory Dispute Resolution Sections 6.5 through 6.8 required mediation followed thereafter by arbitration.

e. Section 1.4: They agree to be bound by this Agreement which settles all issues between them.

f. Section 4.6: Brian and Sherry will make important decisions about the children's welfare together, including decisions about the children's:

(a) education,

(b) major non-emergency health care,

(d) religious activities.

If the parties cannot agree, they will use 4.25 or the section of this agreement entitled "Dispute Resolution” to resolve the dispute.

[11] The parties do not communicate well with each other. They spoke by phone when required. They disagreed about parenting style. The mother pursued a path to deal with the boys’ various exceptionalities. The father disagreed with some of her choices. He did not interfere but did not agree with her direction. This minimized conflict. There is no villain here. I find they are both genuine in their beliefs about their sons’ best interests. There are many ways of raising children, especially children with diverse needs.

[12] The mother is an experienced litigant. Many years ago, during their relationship, she brought an application against Mr. W., the biological father of her three older children. The result was an order that Mr. W. pay the mother $336 a month for the support of those three older children. That order was reviewable upon Mr. W. obtaining full-time employment. The mother never sought a review. She testified that she had found that process financially crippling and exhausting. She was entitled to make that choice. This Respondent father was supportive of her decision and he supported all five children.

[13] By the time the parties signed the Agreement, five years after their separation, the eldest of the five children was independent. When the next two children aged out of support entitlement, the father spoke with the mother about reducing the quantum. There is a small disagreement about what was said. The father sought legal advice about the proper guideline amount for their remaining two children. The father paid that amount of support by e-transfer with a cash top up. They did not go through the Family Responsibility Office. The father testified they also agreed he would pay some car insurance for the two older children. The mother agrees the two older children outgrew child support. There is no claim for any unpaid amounts for the three older children. They carried on with the new payment for years. Otherwise, they remained financially disconnected.

[14] Neither parent used the dispute resolution terms of the Agreement to determine the revised support payment at that time. I find this is reasonable because they did not have a dispute.

[15] Their contracted obligation to produce financial information was reciprocal on both parties upon the request by either. Neither asked for nor provided any disclosure for nine years, until October 2019.

[16] Both parties had access to legal advice.

[17] Both parties experienced success through mediation.

[18] The mother made an informed choice not to pursue disclosure, s. 7 reimbursements or a variation of the support obligation for these two boys. She had the ability to do so under the terms of the Agreement. In 2015, she consulted duty counsel and called some lawyers. She did not seek disclosure until fall 2019. She made a personal, parenting and business choice not to seek a support increase or s. 7 reimbursement. She continued to incur extracurricular expenses without providing receipts or seeking the father’s consent in advance, contrary to the Agreement.

[19] The mother has exceptional executive management skills. She accessed government programs and other resources to supplement various financial needs for the children. The father testified he thought the cost of summer camps was funded by an autism program. I find his conclusion to be reasonable for this family. The father testified the mother coached the older boy not to tell him about his application for ODSP. I find the mother did not share ODSP details with the father for almost a year.

[20] The older boy’s post secondary program is funded through an autism program. The mother made these arrangements without involving the father.

[21] The father honoured the Agreement and paid his support. He made some extra voluntary payments. He maintained benefit coverage for the boys although the mother never made a claim. He is not a “deadbeat dad”.

Section 7 Expenses

[22] S. 7 itself does not require prior consultation for allowable expenses, but their Agreement clearly spelled out the process that the parties agreed was reasonable, including prior consultation before reimbursement and producing receipts. The failure of either parent to discuss an expense in advance or provide proof to the other parent bears on the court’s exercise of its discretion in determining whether it is reasonable. The mother never requested s. 7 contributions under the Agreement procedure. She signed the children up for activities she thought were best, such as camps and hockey. She did not clarify whether some of the expenses were subsidized or subject to some other benefit or deduction. The father knew about camps and hockey. The father did not challenge her about the extra curricular activities. In fact, he picked up the boys from camp and took them to hockey. He testified the boys liked hockey and the team experience was good for them. Most of the s. 7 expenses the mother claims fall under camp or sports expenses. Some, such as school uniforms, or other small school expenses and fees are not proper s. 7 expenses and should have been absorbed within the child support table amount. Most are appropriate in amount.

[23] The father voluntarily gave the mother $500 and a further $250 on another occasion, both towards hockey. He offered to sponsor the hockey team through his business to save costs. He gathered and returned some sports equipment, garnering over $400 in credit for new hockey gear. The mother accepted the cash only. She never gave him bills for further contributions. She refused the hockey sponsorship. She testified this was because it was bad timing, although she never pursued it in subsequent years. The father says it was because she didn’t want his new business partner, now his wife, to have any involvement. I prefer the father’s evidence on this point. The sports store credit is still unused. The mother denied knowing about the credit. The father disputes this. In any event, the boys knew about it. There is no evidence to support the mother’s position that used hockey equipment evidences a professed inability to pay. These boys are big. One is now 6’5”, wearing men’s size 14 ½ shoes. Kids outgrow equipment, and it is expensive. There is nothing wrong with sourcing second-hand sports gear.

[24] I find the father made voluntary contributions and tried to help out. I find the mother resisted his efforts. The father is not asserting that her decisions for extra curricular activities were bad. I accept the father’s testimony he would have liked to have been included and consulted in decisions. I reject any inference he was disinterested. I find the mother left him out of decision making. The father was sad as he described the mother choosing to place one of the children with her adult children instead of with him during an out of town hospitalization of the other child. There is no hint that these older children provided less than exceptional care. The father enjoyed some extra dinners and an overnight but was side-lined as a joint parent by the mother’s choice. This was contrary to the Agreement. Generally, there is no link between parenting decisions and child support. As joint parents, these parties contracted to connect financial contribution with decision-making responsibilities for s. 7 expenses. The mother had an existing and unfulfilled obligation to include the father in decision making for past activities as a condition of payment. Many of those activities are the foundation of the disputed s. 7 expenses.

Law

[25] Counsel agree the relevant legislation is the Divorce Act and the Child Support Guidelines (the “Guidelines”). Balancing the objectives set out in section 1 of the Guidelines promotes fairness:

(a) Fair standard of support (Adequacy);

(b) Reduce conflict, more objective (Certainty);

(d) Consistency in treatment.

[26] The Guidelines are intended to take the mystery out of setting child support in a predictable way for separated families. Separation agreements are binding contracts. I find their Agreement met the objectives of the Guidelines. Neither party took advantage of the comprehensive provisions they negotiated.

[27] Counsel made thoughtful and thorough legal arguments. Both relied on various excerpts of the leading caselaw, including Michel v. Graydon, 2020 SCC 24, D.B.S. v S.R.G., 2006 SCC 37, and Colucci v. Colucci, 2021 SCC 24. Usually, the payor has knowledge of what their support obligation should be, while the recipient parent may not (Michel, para. 32). As is often quoted, a failure to disclose material information is the cancer of family law litigation (Michel, para. 33).

[28] Henderson v. Micetich, 2021 ABCA 103, describes Michel revisiting the D.B.S. considerations, with a modern approach to the application of the Guidelines in cases of retroactive support. Michel confirms many of the principles underlying the Guidelines regime: for instance, that “child support is the right of the child, which right cannot be bargained away by the parents” (para. 10); “child support owed will vary based upon the income of the payor parent” (para. 10); “retroactive child support is not exceptional relief” (para. 31); “retroactive child support awards will commonly be appropriate where payor parents fail to disclose increases in their income” (para. 32), and “retroactive child support simply holds payor parents to their existing (and unfulfilled) legal obligations” (para. 25). While a “retroactive” child support award does not impose a new obligation but simply serves to enforce a past unfulfilled obligation, the mechanism for enforcing that obligation must be found in the governing legislative scheme. A court can enforce an unfulfilled child support obligation only where the governing legislation provides a mechanism for enforcement, and only in accordance with that mechanism (Michel).

[29] Generally, the court retains discretion to depart from a presumptive date of retroactivity if the result would otherwise be unfair. In reaching my decision, I have considered the factors listed in the caselaw including the date of effective notice (October 2019), delay (excuse) in seeking retroactive support, the so-called “3-year rule”, any blameworthy conduct of either parent, circumstances of the children, hardship to the father and certainty in the father’s obligations, balanced with the need for “fairness and…flexibility”, the father’s knowledge of his income and what his support obligation should be.

[30] The mother could have asked for disclosure and a review of support but chose not to do so. The father had the same options. He determined and corrected child support when the economic childhood ended for two of their children. He had knowledge of the connection between his income and quantum.

[31] I have carefully considered the issue of delay in the context of the factors of D.B.S. and Michel. The mother offered little reason for delay other than her distasteful litigation history with her first husband, and that negotiating a separation agreement with this Respondent father was difficult. The fact is he supported her decisions regarding her former husband and he supported all five children. He was not the cause of her bad experience with a different husband. Further, her experience with this Respondent father resulted in a successfully mediated outcome.

[32] I have carefully considered the evidence, and I find the father did not hide income, mislead the mother or intimidate her. I find none of the factors in the Supreme Court of Canada cases to explain away delay play a significant role in this case. These parties chose to build in a process to avoid protracted litigation. They had a comprehensive dispute resolution procedure and a sure-fire disclosure obligation upon request. The mother sought out duty counsel in 2015, but made a personal, parenting and business decision not to exercise her options. She waited four additional years to ask for a tax return, and now that the children are mostly grown, asks to redistribute past income already spent.

[33] I find the mother’s explanation for the delay is neither reasonable nor understandable.

[34] I find the mother chose not to follow the process to seek reimbursement for s. 7 expenses. I find she accepted the father’s contribution in satisfaction of any claims. I decline to order the father to contribute to any s. 7 expenses for the period 2016 to the present. I accept their resolution of recent claims.

[35] This family essentially hit a pause button for years. Despite clearly spelled out rights and responsibilities, neither parent chose to review child support or disclosure despite negotiating it eleven and a half years ago.

[36] The Agreement provided for a mandatory Dispute Resolution process to engage mediation and if necessary, arbitration. Neither party did so. When the mother did ask the father for disclosure in October 2019, they had a further miscommunication. After the parties spoke, the father erroneously heard the Family Responsibility Office was reviewing the Agreement, even though that office had never been involved. This ruffled him but I do not find he was threatening. He adequately explained why he believed the mother was the source of his belief. The father was legitimately worried about privacy issues. He immediately sought legal help. His original lawyer retired from legal practice, so he contacted his corporate lawyer. After a short delay by the corporate lawyer, he got some poor legal advice about which documents to disclose. As a result, the mother chose to ignore the mandatory dispute resolution provisions and quickly started this proceeding.

[37] By January 2020, the father had the benefit of Mr. LaFrance’s legal advice. Full disclosure flowed, and the father provided two unsolicited top-up payments of $1,500 each. The father doubled the child support to $2,000 from $1,000.

[38] So, if the Agreement is valid, a deal is a deal, the law encourages certainty and settlement, the delay issue has been addressed, the dispute resolution process was overlooked, the father did not know how much his income had increased and courts are not financial planners for families, why should the mother get more support now for a time prior to effective notice? The short answer is because it is fair to do so at law.

[39] Both parents’ incomes increased over the years. The father’s income increased significantly. Once the legal process was engaged in 2020, both parties retained accountants to assist in a proper income determination for the father for the disputed years. Just before trial, they settled upon a formula to impute income to the father including future income determination. I do not hold him culpable for not understanding the accounting principles which resulted in a higher income for the purposes of paying child support contrasted with an income for the purposes of paying income tax. It is complicated.

[40] Two highly skilled lawyers and two accountants disagreed. I have charted below three columns of income for the father. This may seem confusing. I find the father is truthful when he stated he was not completely aware of his income. It follows that the mother would be equally unaware. I find the father did not hide his income and I find the mother did not seek it at the relevant time. I doubt that they would have been able to draw these same imputed income conclusions without professional assistance. While the father is a successful mechanic with a good business, he is no accountant. The substantive difference between the income determination reports and his line 150 income on his annual tax returns relates to the treatment and inclusion of capital reserves, and attributed pre-tax corporate income. Further, the father’s line 150 income on his Notice of Assessment (NOA) was revised after realizing in the course of these proceedings he had incorrectly claimed rental income on a property he did not own. He actually claimed a much higher income on his initial return. Accordingly, it was reassessed down once his lawyer noticed the mistake.

2010

Date of Agreement

2016

2017

2018

2019

Mother

$59,000

$58,755

$73,412

$92,506

$80,035

Father - agreed income as adjusted by accountants

$50,000

$128,000

$186,000

$229,000

$207,000

Father NOA - Line 150 at time of filing each return

$88,103

$90,372

$97,376

$94,875

Father - REVISED NOA - Line 150*

*adjusted by CRA after error of rental income inclusion

$79,136

$79,247

$95,700

same

[41] The disparity in the parties’ incomes seems modest at first glance, looking through the limited lens of the Line 150 ITA returns. This is relevant only in the determination of the proportionate payment of s. 7 expense claims. The Guidelines formula calculates the table amount using the payor father’s income and ignores the mother’s income as primary parent, regardless of delay.

[42] I do not find the father’s income discrepancy between his tax returns and the accountant’s report to be blameworthy conduct. I accept that he was not aware of his income for child support determination. Still, I must consider his ability to pay when balancing the many considerations.

[43] As noted in Colucci, a child’s interest in a fair standard of support commensurate with income is the core interest to which all rules and principles must yield. A fair result that adequately protects this interest will sometimes lean toward preserving certainty, and sometimes toward flexibility (para. 4). It is not a mathematical equation. Even though I find the father was unaware of the extent of his income increase until professionals prepared reports, he is now aware. As noted in D.B.S., certainty offered by an agreement does not absolve parents of their responsibility to continually ensure that their children receive the appropriate amount of support. The quantum of child support he faithfully paid became inadequate. Fair child support, even in the face of their Agreement, history, delay, lack of disclosure request and legal principles, require him to make a payment.

[44] I have considered the father’s voluntary efforts to make some payments but I find that in light of the imputed income, he has underpaid. He had a major income increase, even if it was somewhat historic, invisible, or notional to his daily cash flow. Any hardship to pay from today’s dollars, amid a pandemic, can be addressed by payment terms.

[45] In all of the circumstances, I find the delay in seeking retroactive child support before effective notice was given is not adequately explained by the evidence. The mother’s claim to go back to January 2016 is just too far.

[46] I have carefully considered s. 15 of the Divorce Act. I find their Agreement is a reasonable arrangement with respect to their financial obligations for the support of their children. I find their protocol to address s. 7 expenses is fair, reasonable and meets the objectives of the Guidelines. I find the father owes nothing to the mother for s. 7 expenses. In the exercise my discretion, I find it is equitable, fit and just in all of the circumstances that the father pay an additional sum for child support of $8,500 for the time period prior to November 1, 2019.

[47] Any hardship to the father may be addressed by the form of payment (Michel, para. 124). Accordingly, I order that the father may pay the $8,500 over time, without interest or penalty, starting the month after his last child support obligation ends at the rate of whatever his monthly table child support obligation is at that time. At his option, he may pay $7,500 within 15 days in full satisfaction of this amount. I have no concern that he will make the payment. I encourage him to take the option for early payment.

[48] Given the age and circumstances of the children, the mother will indirectly benefit from this order, particularly if the payments start after the youngest child ceases to be eligible for support. So be it.

[49] Both parents presented well. They were polite and civil. Both radiated love for their children. The mother wanted the father’s involvement and the father wanted to provide it. There is a disconnect. Counsel kept the parties on task with the issues to be determined but it is clear these parents have unfinished business to discuss. One example is the co-op placement opportunity. I urge both parents to consider communication counselling for their children’s sake. Both have benefits available through their employment. While the status as children of the marriage under the Divorce Act may be time limited, these boys will always require parental guidance to help them negotiate their way through life.

Endorsement

[50] There are no s. 7 expenses owing by the Respondent, James Brian Deveau to the Applicant, Sherry Lynne St Cyr.

[51] The Respondent, James Brian Deveau shall pay child support for two children to the Applicant, Sherry Lynne St Cyr for the period prior to and including November, 2021 fixed in the amount of $8,500, without interest or penalty, starting the month after his last child support obligation ends at the rate of whatever his monthly table child support obligation is at that time. At his option, he may pay $7,500 within 15 days in full satisfaction of this amount.

[52] Failing agreement as to costs, the Respondent, James Brian Deveau shall have 14 days to serve and file Costs Submissions limited to 3 pages plus a Costs Summary and Offer(s) to Settle. Upon service of the Respondent’s Submissions, the Applicant, Sherry Lynne St Cyr shall have 14 days to serve her Costs Submissions limited to 3 pages plus a Costs Summary and Offer(s) to Settle. Upon service of the Applicant’s Submissions, the Respondent shall have 5 days to serve and file a Reply limited to 1 page.

[53] Save and except for the issue of costs, the balance of claims in these proceedings are dismissed.

Madam Justice Cheryl Robertson

Date: January 20, 2022

COURT FILE NO.: FC-10-00000482-0000 (Kingston)

DATE: 20220120

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SHERRY LYNNE ST CYR

Applicant

– and –

JAMES BRIAN DEVEAU

Respondent

JUDGMENT

Robertson J.

Released: January 20, 2022

St Cyr v. Deveau , 2022 ONSC 480

Case Summary

Issue Requiring Adjudication:

Settlement since Effective Notice forward

Family Overview

Separation Agreement and Litigation History

Section 7 Expenses

Law

Endorsement

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 1