Nature of the Proceeding

[1] The claimant, Elizabeth Hickling (“Elizabeth”), seeks to confirm and enforce a provisional child support order made in Manchester, England, a reciprocating jurisdiction, pursuant to s.17 of the Ontario Interjurisdictional Support Orders and Enforcement Act, S.O. 2002, c. 13 (“ISO”).

[2] On November 5, 2014, the Family Court of England, and Wales, made a provisional order that David pay Elizabeth, £300 per month as child support for S. and a lump sum payment of £700 within 28 days of provisional support order being confirmed (“The British provisional order”).

[3] Elizabeth and the designated authority served a certified copy of The British provisional order on the ISO unit of the Family Responsibility Office in Ontario pursuant to s.18 of the ISO. On October 11, 2017, the provisional order was registered in Ontario and is of no force or effect until is it confirmed by a court.

[4] I must determine whether to confirm The British provisional order.

Background Facts

[5] Elizabeth and David Parkin Coates (“David”) are the parents of a child, S., born on January 13, 1999 (currently aged 23). S. was born in Manchester, England. Except for about four months in 2016 when S. resided with David in Canada, S. has resided in England.

[6] When S. was 12 years old, he was diagnosed with ADHD. He struggled with ADHD and had difficulties emotionally because of not having David involved in his life on a regular basis. Elizabeth describes S. as having experienced “a lot of difficulties”, “struggling emotionally”, “needing a lot of support”, and remaining challenged with organizational skills even after he turned 18 years of age. Elizabeth managed S.’s ADHD on her own.

[7] On January 16, 2014, Elizabeth made an application for a provisional order under s. 3 of the Maintenance Orders (Reciprocal Enforcement) Act 1972, 1972 c. 18, in Manchester, England, seeking child support for S., born January 13, 1999, from David Coates. At the time she issued this application, S. was 15 years old.

[8] In support of the relief she sought, Elizabeth filed a financial statement setting out that she has two children living with her, one of which, is the son of David. She calculated the expenses for S. to be £805 a month, which included the portion of her fixed housing costs attributable to S.; his nursery fees; car insurance; and a pension payment.

Elizabeth’s Position

[9] On November 5, 2014, Elizabeth gave evidence in writing to the court in Manchester. She deposed, among other things, that,

a. She is the mother of S. born January 13, 1999;

b. David is not named on S.’s birth certificate but he is the biological father;

c. David was not present at the birth but acknowledged he was the father upon being told by Elizabeth that he was the father when S. was born;

d. She and David separated prior to the birth of S., but six months after S. was born, she and David resumed their relationship. The relationship between Elizabeth and David ended permanently when S. was 5 years old, in 2004.

e. After the separation, contact between David and S. was sporadic. David is self-employed as a professional guitar technician and Group Road Supervisor for professional music groups and, as a result, is on tour and moved a lot.

f. David moved to Canada in 2005;

g. After David moved to Canada, he visited S. about five times a year but this reduced over to once a year, with the last time being in either July or August 2013.

h. David made some financial contribution for S. from about 2009 or 2010 until 2012 of £50-150 pounds a month to Elizabeth.

i. David also paid for S.’s mobile telephone, at a cost of approximately £20 a month, for about a year.

j. David was employed by the music group “Snow Patrol” and worked for other music groups on contract, the details of which are unknown to her;

k. She did not know David’s address, but she knows he resides in Toronto.

l. David communicated with her by email by using the email address coatesy1@emas.com and by a cellular phone.

m. Elizabeth lives with her partner and contributes £300 pounds to their living expenses.

n. Elizabeth is employed by Stockport College, 2 ½ days per week.

o. Elizabeth seeks child support from David in the sum of £250 pounds a month toward S.’s expenses; and

p. Elizabeth also seeks lump sum child support of £1000 to contribute to her overdraft bank account as she incurred loans to support S. without any contribution from David.

[10] As indicated above, on November 5, 2014, The British child support provisional order was made pursuant to the Children Act, 1989 (UK), 1989 c. 41.

[11] In accordance with the regime under the ISO, a copy of the British provisional order was certified by this court on October 11, 2017, court file FS-17-2181000, and the quantum of £300 was determined to be equivalent to $545.76 CAD a month at the time the order was made. Further, the lump sum child support award of £700 was determined to be the equivalent of $1,273.33 CAD.

[12] In accordance with the ISO, the Ontario Superior Court of Justice, is to either confirm the terms of The British provisional order or set it aside if David brings a motion to set it aside.

[13] The delay between November 5, 2014, namely, when The British provisional order was made and October 11, 2017, when this court received and certified the order is not explained in the record before me.

[14] On October 26, 2017, David was served with a Notice of Hearing, dated October 17, 2017, by this court. The Notice of Hearing set out that the court had received an application under the ISO and that a provisional order made outside of Ontario had been received.

David’s Position

[15] On November 27, 2017, David filed an Answer to the Notice of Hearing, indicating that he did not agree with the application. Although he acknowledged that The British provisional order had been made, he deposed that he could not afford to pay either the lump sum child support order of $1,273.33 or the periodic child support of $545.76 a month commencing November 1, 2014.

[16] David filed a sworn financial statement showing his income to be $25,000 in 2017. Attached to his financial statement were copies of his Notices of Assessment which showed that a) in 2015, his Line 150 income reported on his income tax return was $19,909; and b) In 2016, his Line 150 income reported on his income tax return was $30,576. He deposed that he did not earn any money in 2014.

[17] On November 27, 2017, David also filed an affidavit in support of his objection to The British provisional order and Elizabeth’s child support claim for the following reasons:

a. He was served with Elizabeth’s application on October 26, 2017, which was the first notice he was given that she was seeking child support from him;[^1]

b. He had no current information about the extent to which Elizabeth was financially supporting S.;

c. He believed that S. was attending University in Manchester, School of Sound Recording, living independently near the university, visiting the paternal (David’s) grandmother on the weekends, and only seeing Elizabeth occasionally;

d. He paid child support to Elizabeth when they separated in 2004 in the sum of £200 a month. The payments were made by him in cash, and he did not receive any receipts from Elizabeth;

e. In 2004, he was self-employed as a guitar technician for professional musicians, which remains his present employment and requires a great deal of travel;

f. He paid Elizabeth £200 a month from 2004 to 2010;

g. In 2011, he began to pay child support to Elizabeth via cheques because he had a bank account at that point in time;

h. In 2011, he paid child support to Elizabeth, in the total sum of $3,925;[^2]

i. In 2012, he paid child support to Elizabeth, in the total sum of $3,875;[^3]

j. In 2013, he paid child support to Elizabeth, in the total sum of $1,050, as well as having paid for the cost of S.’s flight to Canada;[^4]

k. In 2014, he did not pay child support to Elizabeth but, he did make payments toward S.’s mobile phone provider and he paid for shoes for S.;[^5].

l. In September 2014, S. began attending full-time post-secondary educational program at the British and Irish Institute of Music in Manchester (B.I.M.M.);

m. In 2014, S. told him that Elizabeth’s partner was abusive toward him, there was no food in the house, and he was sleeping on a mattress in the house, at which point David decided to pay S. support directly;

n. In 2015, he paid funds to S. directly and for his mobile phone in the sum of $1,469, and a further sum to Elizabeth in the sum of $305;[^6]

o. In November 2015, S. moved into David’s mother’s home, because things were not good between S. and his mother. At this time, he paid $2,213.47 to purchase S. a passport, laptop, undergo the medical assessment for immigration purposes and birth certificate to start the process for S. to move to live with him and his partner. He also paid for S.’s mobile phone in the sum of $110.91;

p. In November 2015, S. discontinued his studies at B.I.M.M. and he resumed working as an international guitar technician. He also acquired a Canadian work permit;

q. In January 2016, S. came to Canada to live with David and his partner, Emma Wright. S. stayed with them for 4 months. David was on tour and S. learned that if he wanted to attend post-secondary education in Canada, he would have to complete a high school math. He enrolled at Western Tech high School to take the math course and attended school there from January 2016 to March 2016. S. then discontinued the math course and decided to return to B.I.M.M but not to return to reside with Elizabeth. During the time that S. was residing with David, he did not pay any support to Elizabeth;

r. When S. was at B.I.M.M. he resided with David’s mother on the weekends and at his mother’s home when he was attending classes between April and June 2016;

s. In July 2016, S. returned to Canada to be with David and then returned to reside with Elizabeth when her boyfriend left in August 2016. S. resided with his mother for the balance of 2016;

t. In 2016, David paid a total of $7,880.63 for S.’s benefit, a significant portion of which was to renovate his home to make a bedroom for S. and to pay for travel. The direct payments to S. for his support totalled $1,571.62;

u. In 2017, S. resided with his mother from January to August. S. moved into his own apartment in September 2017; and

v. In 2017, David paid S.’s phone bill and gave him direct monies, in the total sum of $893.24[^7]

[18] David seeks to be given credit for the payments he has made on S’s behalf as against The British child support provisional order made by the court in Manchester, England.

The Ontario Court’s Involvement

[19] On December 15, 2017, this matter came before Stevenson, J. in writing. Stevenson, J. ordered, 1) David’s Answer to Application and Affidavit be forthwith served on Elizabeth; 2) if Elizabeth wishes to provide an Affidavit in reply, including Exhibits as evidence, she was to serve and file her reply affidavit by February 28, 2018, after which time, a determination was to made by the Court as to whether an oral hearing is required; and 3) a copy of the Endorsement was to be served on both parties forthwith.

[20] Elizabeth was somewhat delayed in delivering her additional evidence to this court. However, on November 6, 2018, in accordance with Stevenson, J.’s Endorsement, dated December 17, 2017, Elizabeth gave oral evidence in the Manchester Civil and Family Justice Centre before District Judge Mark Andrews. This evidence was in reply to David’s responding affidavit. Elizabeth also prepared a written statement, dated November 6, 2018.

[21] Upon receipt of the further evidence and documentation from the court in Manchester, this court prepared a notice of continuation of hearing and sent it, together with the copies of Elizabeth’s second statement of evidence, dated November 6, 2018. David was not served with this additional evidence until May 6, 2019, by this court. There is no explanation provided in the record for this delay.

Elizabeth’s Reply Position

[22] Elizabeth’s reply evidence can be summarized as follows:

a. In November 2014, the British provisional order was made, with which David has not complied;

b. S. continues to be financially dependent on Elizabeth and she has continued to incur substantial debt over the many years she was supporting S. alone;

c. While she acknowledges, from David’s affidavit, that he did make some financial payments to S. directly, he did not contribute to any of the fixed housing, food, clothing, or general costs she incurred on behalf of S.;

d. Prior to 2014, S. lived with Elizabeth from the time he was born in 1999.

e. In 2014, S. attended Harrytown High School in Stockport and lived with Elizabeth at 5 Winifred Road, Stockport;

f. In November 2014, The British child support was made that David contribute toward child support arrears and that he pay ongoing child support to her;

g. In 2015, S. completed his FCSEs and left school. He continued to reside with Elizabeth and started to attend Aquinas College in Stockport;

h. In January 2016, S. went to Canada to stay with David for three months. However, David went on tour with a band and, as a result, S. returned to reside in Stockport in March to live with Elizabeth;

i. In 2017, from January to September, S. lived with Elizabeth in Stockport;

j. In September 2017, S. started college at SSR Manchester and moved into student accommodation at Silmslow Park, Manchester from September to January;

k. During this time, Elizabeth paid for S.’s food and travel expenses. He also incurred a debt for accommodation cost of $2,175, which Elizabeth is paying off as credit card debt;

l. From 2018 to the date Elizabeth swore this affidavit, S. has been residing with Elizabeth’s mother in Stockport as a temporary solution until he starts another course;

m. Elizabeth has experienced stress and financial hardship to ensure that she met S.’s basic needs;

n. S. was diagnosed with ADHD when he was 12 years old, and he suffered emotionally because of having sporadic parenting time with David;

o. Elizabeth denies that David paid £200 monthly to her in 2004 to her. She deposes that she received regular monthly maintenance from David between 2011 to 2014; and

p. Elizabeth submits that any monies David paid for renovations to his home to enable S. to have a room in David’s home in Canada ought not to qualify as child support, this is especially the case, when S. only stayed at David’s home twice, for a matter of weeks.

[23] Elizabeth’s evidence is that she had tried to obtain child support from David directly and through the ISO child support agency for years. As soon as she was told that she could seek enforcement of child support through REMO, it took years for her to get a hearing date and then a further 4 years for the courts in Canada to review her case.

[24] Elizabeth categorically denies David’s claims that there was no food in her house for S. She deposes that she has always ensured there was sufficient food for S. in her home and, in fact, she paid particular attention to his food intake given his ADHD diagnosis.

[25] Elizabeth categorically denies David’s claim that S. ever lived with David’s mother.

[26] Elizabeth argues that David ought to have earned an income in 2014 and he ought not to be able to rely on the fact that he did not report earning any income as a way to absolve himself of a child support obligation for S.

[27] Elizabeth’s evidence is that while by November 8, 2018, S. was no longer enrolled in a full-time post-secondary education program, she continues to bear the burden of paying off the debts she incurred over the years while she raised him without any support when he was attending full-time education.

[28] According to Elizabeth, it would make a significant difference to both Elizabeth and S. if the retroactive child support was paid by David as it would eliminate her debt and S.’s debt.

The Law in Britain regarding Adult Children

[29] On November 8, 2018, District Judge, Mark Andrews, of the Manchester Civil and Family Justice entre wrote to our court enclosing Elizabeth’s material. In this letter, he stated as follows:

An issue which has become particularly relevant due to the passage of time since the proceedings were commenced is that of the cessation date of any order for maintenance, should the judge determine that an order be confirmed.

The relevant provisions of the law of England and Wales are set out in Paragraph 3 of Schedule 1 to the Children Act, 1989. For ease, I have set these out as an annex to this correspondence. You will note that the power to extend an order beyond the age of 17 primarily relates to continuance of education or training. To assist the court the applicant was specifically asked to provide evidence in relation to child’s education history and this is set out in the record of oral evidence.

[30] Based on the evidence on the record before me, it is agreed by both parties that,

a. S. is the biological child of David and Elizabeth;

b. S. has student loans in connection with his post-secondary education, loans which need to be discharged.

c. S. is over the age of majority but enrolled in a full-time post-secondary educational program;

d. S. resided with Elizabeth in England except for four months from January to May 2016 and for the month of July 2016, when he resided in Canada with David.

e. S. would be entitled to child support in Britain even once he was over the age of 18 because he was enrolled in and attended post-secondary education and/or training.

Delay between May 6, 2019, and August 2022

[31] This matter did not come to my attention until August 11, 2022. There is no indication in the file as to why this matter sat unattended to for four years. It is extremely regrettable that the ISO process which, intended to provide a simplified way for a support order made in one jurisdiction to be made enforceable in another jurisdiction has, in this matter, resulted in such serious delay for these parties. This delay is the result of multiple failings in the ISO system, which has a negative and direct impact on these parties, most particularly, S. This failure is disappointing for everyone involved. In accordance with the primary objective of the Family Law Rules, O. Reg. 114/99 in Ontario, the court must be enabled to deal with cases justly: r.2(2), which includes (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases: r. 2(3). Accordingly, I have relied on the evidence on the record before me in reaching the determination below.

Issue: Should this Court confirm the Provisional Order made by Court in Manchester England?

Statutory Framework

[32] The ISO is based on model, uniform legislation designed to streamline the process by which support orders are affected and enforced across provincial and national boundaries. It works in tandem with comparable legislation in reciprocating jurisdictions, including England.

[33] Under the ISO, applications originating in certain jurisdictions require a “provisional variation order” to be made by a court in the jurisdiction where the applicant is ordinarily resident before the materials are sent to Ontario. Other jurisdictions do not involve securing a provisional order before materials are sent to Ontario and an application is made here.

[34] The United Kingdom requires applicants for support variation orders first to obtain provisional variation orders in their own jurisdiction: see, Mathers v. Bruce, 2005 BCCA 410, 51 BCLR (4th) 54 at paras. 24-26. In such a case, an applicant brings a court application in the jurisdiction in which they ordinarily reside, without giving notice to the respondent. If the provisional variation order is made, both it and the support variation application are sent to the court in the reciprocating jurisdiction where the respondent ordinarily resides. When the Ontario court receives the provisional order, the respondent is served with a copy of the application and notice of hearing: see ISO, s.33(1).

[35] Rule 37 of the Family Law Rules, O. Reg. 114/99 deals with proceedings pursuant to the ISO. Rule 37(7) requires an application pursuant to ISO to be dealt with on the basis of written material without the need of the parties or their lawyers having to appear. However, a responding party may request an oral hearing by filing a form 14B motion within 30 days of being served with the notice of hearing (r. 37(8)), or the court may order an oral hearing (r. 37(9)). Neither David nor the court requested an oral hearing.

[36] David did file a financial statement, sworn on August 15, 2016, along with an answer. However, in filing his answer, David used the form 10 answer, which is the standard form to respond to an application (rather than using the “form N” answer, which is required by r. 37(4)(a) for ISO proceedings). That particular document is an affidavit and constitutes the evidence of a person who files an answer in response to an ISO application. Although David’s sworn financial statement constitutes evidence as to his income, there is no other admissible evidence filed by him. Also, no form 14A affidavit was filed by the respondent as required by r. 37(4)(b).

[37] The provisions of the ISO that are relevant to this motion are set out below:

Application of Part. — This Part applies in respect of support orders, temporary support orders and orders varying support orders made in reciprocating jurisdictions in and outside Canada, but not in respect of provisional orders or provisional variation orders.

Receipt of order in Ontario.—(1) To enforce an order to which this Part applies, the claimant or the appropriate authority of the reciprocating jurisdiction shall send a certified copy of it to the designated authority, together with information about the location and circumstances of any party who is believed to ordinarily reside in Ontario.

(2) Sending to court.— On receiving the certified copy, the designated authority shall send it, in accordance with the regulations, to the clerk of the Ontario court sitting nearest the place where the party is believed to reside.

Registration.—(1) On receiving the order under subsection 18(2), the clerk of the Ontario court shall register it as an order of the court.

(2) Effect of registration.— From the date of registration, the order has the same effect as a support order made by an Ontario court.

(3) Notice.— If the order was made outside Canada, notice of its registration shall be given in accordance with section 20, but there is no requirement to give notice of the registration of an order made in Canada.

(4) Same.— The registered order may be enforced or varied under this Act with respect to arrears accrued before registration as well as with respect to obligations accruing after registration.

(5) Same.— Subsections (2), (3) and (4) apply whether the registered order is made before, on or after the day on which this Act comes into force.

(6) Copies of registered order.— When an order has been registered under subsection (1), the clerk of the Ontario court shall,

(a)

file a copy with the Director of the Family Responsibility Office under the Family Responsibility and Support Arrears Enforcement Act, 1996, unless the order is accompanied by a notice signed by the person seeking enforcement stating that he or she does not want the order enforced by the Director; and

(b)

send a copy to the designated authority.

(7) 30-day delay, order made outside Canada.— Despite subsection (6), if the registered order was made outside Canada, copies shall not be filed with the Director of the Family Responsibility Office or sent to the designated authority until,

(a)

the 30-day period described in subsection 20(2) has expired without a motion being made to set aside the registration; or

(b)

if such a motion is made during the 30-day period, the motion has been finally disposed of.

Notice of registration, order made outside Canada.—(1) After the registration of an order made in a reciprocating jurisdiction outside Canada, the clerk of the Ontario court shall, in accordance with the regulations, give notice of the registration of the order to any party to the order who is believed to ordinarily reside in Ontario.

(2) Motion to set registration aside.— Within 30 days after receiving notice of the registration of the order, a party to the order may make a motion to the Ontario court to set aside the registration.

(3) Notice of motion.— A party who makes a motion under subsection (2) shall give notice of it to the designated authority and to the claimant in accordance with the regulations.

(4) Power of court.— On a motion under subsection (2), the Ontario court may,

(a)

confirm the registration; or

(b)

set aside the registration if the Ontario court determines that,

(i)

in the proceeding in which the order was made, a party to the order did not have proper notice or a reasonable opportunity to be heard,

(ii)

the order is contrary to public policy in Ontario, or

(iii)

the court that made the order did not have jurisdiction to make it.

(5) Reasons for setting aside.— If the Ontario court sets aside the registration, it shall give written reasons for its decision and send them to the designated authority.

(6) Jurisdiction.— For the purposes of subclause (4)(b)(iii), a court has jurisdiction,

(a)

if both parties to the order ordinarily reside in the reciprocating jurisdiction outside Canada; or

(b)

if a party does not ordinarily reside in the reciprocating jurisdiction outside Canada but is subject to the jurisdiction of the court that made the order.

(7) Notice.— The clerk of the Ontario court shall give notice of a decision or order of that court to the parties and the designated authority, in accordance with the regulations.

(8) Proof of notice.— In a proceeding to enforce a registered order made in a reciprocating jurisdiction outside Canada, it is not necessary to prove that the respondent received notice under subsection (1) or (7).

Effect of setting aside.—(1) If the registration of an order made in a reciprocating jurisdiction outside Canada is set aside under section 20, the order shall be dealt with under this Act as if it were a document corresponding to a support application received under paragraph 2 of section 9 or a support variation application received under paragraph 2 of section 32.

(2) Request for information and documents.— If the order does not contain the necessary information or documents required for a support application or support variation application, the designated authority shall request them from the claimant or from the appropriate authority of the reciprocating jurisdiction in which the order was made, and no further steps shall be taken in the proceeding until the designated authority has received the required material.

CLAIMANT OUTSIDE ONTARIO

Application of ss. 9 to 16.—(1) Sections 9 to 16 apply in respect of,

(a)

provisional orders referred to in clause (b) of the definition of “provisional order” in section 1; and

(b)

documents from reciprocating jurisdictions corresponding to a support application described in subsection 5(2).

(2) Meaning of “support application”.— In sections 9 to 16, “support application” refers to the orders and documents described in subsection (1).

Steps taken by designated authority.— If the designated authority receives a support application from an appropriate authority in a reciprocating jurisdiction, with information that the respondent ordinarily resides in Ontario, it shall take the following steps:

Verify the information about the respondent’s ordinary residence.

If the information is confirmed, send the support application to the Ontario court.

If the information is not confirmed and the designated authority knows or believes that the respondent ordinarily resides in another reciprocating jurisdiction in Canada,

i.

send the support application to the appropriate authority in that other reciprocating jurisdiction, and

ii.

notify the appropriate authority in the originating reciprocating jurisdiction that it has done so.

If the information is not confirmed and the designated authority has no information about the respondent’s ordinary residence, return the support application to the appropriate authority in the originating reciprocating jurisdiction.

If the information is not confirmed and the designated authority knows or believes that the respondent ordinarily resides in a jurisdiction outside Canada, return the support application to the appropriate authority in the originating reciprocating jurisdiction with any available information about the respondent’s location and circumstances.

Choice of law rules.— The following rules apply with respect to determining entitlement to support and the amount of support:

In determining a child’s entitlement to support, the Ontario court shall first apply the law of the jurisdiction in which the child ordinarily resides, but if the child is not entitled to support under that law, the Ontario court shall apply Ontario law.

In determining the claimant’s entitlement to support, the Ontario court shall first apply Ontario law, but if the claimant is not entitled to support under Ontario law, the Ontario court shall apply the law of the jurisdiction in which the claimant and the respondent last maintained a common habitual residence.

In determining the amount of support for a child or for the claimant, the Ontario court shall apply Ontario law.

What Substantive Law Applies to this Support Application?

[38] Paragraph 1 of section 13 of the ISO provides that, in determining a child’s entitlement to support, I should first apply the law of Britain but, if a child is not entitled to support under that law, then the section directs that the court “shall apply Ontario law.” Regardless of what law determines entitlement, I am directed to apply Ontario law in determining quantum.

[39] A copy of Schedule 1, paragraph 3 of the British Children Act, 1989 (UK), 1989 c. 41 was provided to me by the District Judge of the Manchester Civil and Family Justice, Judge Mark Andrews.

[40] The relevant paragraph in the British legislation is reproduced below:

3(1) The term to be specified in an order for periodical payments made under paragraph 1(2)(a) or (b) in favour of a child may begin with the date of the making of an application for the order in question or any later date or a date ascertained in accordance with sub-paragraph (5) or (6) but—

(a) shall not in the first instance extend beyond the child’s seventeenth birthday unless the court thinks it right in the circumstances of the case to specify a later date; and

(b) shall not in any event extend beyond the child’s eighteenth birthday.

(2) Paragraph (b) of sub-paragraph (1) shall not apply in the case of a child if it appears to the court that—

(a) the child is, or will be or (if an order were made without complying with that paragraph) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or

(b) there are special circumstances which justify the making of an order without complying with that paragraph. [Emphasis added]

[41] The Children Act, 1989, therefore provides that S. remained entitled to child support even after he reached the age of 18 because he was receiving instruction at an educational establishment and/or undergoing training for a trade, profession or vocation, even if he was working.

[42] S.’s entitlement to receive child support beyond the age of majority is comparable to Ontario law. Since S. is entitled to child support under the law in Britain, we do not need to turn to S’s eligibility to receive child support in Ontario.

Analysis

[43] S. was 15 years old when Elizabeth began this Application on January 16, 2014. S. was 17 years old when The British provisional order was made. There is no dispute that S. was entitled to child support for the time-period when he was under 18 years of age, payable by David since S. lived with Elizabeth at the time of the order and David lived in Ontario.

[44] David, however, seeks to be given credit for the amounts of child support he paid to Elizabeth, to S. or on S.’s behalf to third parties, such as his cellular phone provider. The difficulty is, the evidence provided by David, as exhibits to his affidavit, shows different amounts David paid on S.’s behalf than those set out in the narrative portion of David’s affidavit. Further and more importantly, David attached bank statement accounts for bank accounts not in his name, but, rather, in the name of his partner Emma Wright. These bank statements were the evidence David relied on to show the extent of the payments he made either to Elizabeth, to S. directly, or on S.’s behalf to third parties. However, there is no way to verify that these payments were, in fact, made by David on S.’s behalf, especially since David’s partner, Emma Wright, provided no evidence to the court to corroborate David’s version of events.

[45] Elizabeth’s evidence is that David paid child support to her on a periodic basis between 2011 and 2014. Elizabeth is seeking child support for S. from David beginning in January 2014, 2015, 2016, 2017 and for 11 months in 2018, when S. ceased attending post-secondary education (by November 2018).

[46] David has provided evidence as to his income in the years 2014, 2015, 2016 and 2017. The court has no evidence as to David’s income in 2018.

Quantum of Child Support to be Determined by Ontario Law

[47] The ISO requires me to determine the quantum of child support David is obliged to pay in accordance with Ontario law.

[48] The Ontario Child Support Guidelines, O. Reg. 391/97 (“CSG”), applicable to this matter since Elizabeth and David were never married, are used to determine the quantum of child support that David is obliged to pay. Support for a child under the age of majority is presumptively the amount set out in the Tables, according to the number of children under the age of majority to whom the order relates and the income of the parent against whom the order is sought, and the amount, if any, determined under s.7; s.3(1).

Entitlement to Child Support Year by Year

Child Support for 2014

[49] In 2014, S. was 15 years age, attending high school in Stockport and residing with Elizabeth. For this calendar year, he would be entitled to table child support under the CSG. Elizabeth issued her application for child support in January 2014. Accordingly, I find that Elizabeth is entitled to receive table child support for S. under the CSG for the entire 2014 calendar year.

Child Support for 2015

[50] In 2015, S. was 16 years old, and he completed his General Certificate of Secondary Education. S. then began attending Aquinas College in Stockport. S. continued to reside with Elizabeth at home during this calendar year. Accordingly, I find that Elizabeth is entitled to receive table child support for S. under the CSG for the entire 2015 calendar year.

Child Support for 2016

[51] In 2016, S. turned 17 but remains entitled under the Children Act, 1989 (UK), 1989 c. 41 to receive child support if he is receiving instruction at an educational establishment or undergoing training for a trade, profession, or vocation, which he was for part of that year.

[52] For children over the age of majority, which in Canada is age 18, the amount of child support is, a) the amount determined by applying the CSG as if the child were under the age of majority or b) if the court considers that approach to be inappropriate, the amount it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child: s.3(2).

[53] Once it is determined that a child over the age of a majority is entitled to child support, which is the case with S., the next question is whether the table amount under the CSG amount is inappropriate, and if so what the appropriate amount of support is.

[54] In this case, the evidence is that for three months in 2016 namely, January, February and March, S. came to Canada. He was not attending post-secondary studies at that time. He returned to reside with Elizabeth at some point in March 2016. S. then returned to Canada to spend time in July 2016 with David. Therefore, in 2016, I find that there were a total of 4 months when S. did not reside with Elizabeth, for which David is not obliged to pay child support. There is no evidence on the record that S. was, in fact, receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, in 2016 for the remaining 8 months in the calendar year when S. returned to live in England with his mother. He was, however, clearly financially dependent on her.

[55] The Children Act, 1989 (UK), 1989 c. 41 provides that child support for adult children can be ordered if there are special circumstances which justify the making of an order, even if a child is not attending school or undergoing training for a trade, profession, or vocation. It is not known, however, whether the courts in England have interpreted that a child, taking time off from his/her studies, for a period of time would constitute “special circumstances” which justify the making of a child support. Since I do not have knowledge of the law in Britain on this point with respect to adult children, I turn to the law in Ontario.

[56] The Family Law Act, R.S.O. 1990 c.F.3, in Ontario is the statute that would apply to this case since David and Elizabeth were not married. Section 31 of the Family Law Act sets out the obligation of a parent to support a child. It provides as follows:

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents. 2017, c. 34, Sched. 15, s. 1.

[57] The issue is whether S. was unable in 2016 to withdraw from the charge of his parents, even though he was over the age of 18 and he was not enrolled in a full-time program of education.

[58] There are many cases in which courts in Ontario have found that a child taking a “gap year” before starting post-secondary studies, or a brief hiatus from an educational program, may nonetheless remain a “child of the marriage”: see, for example: Edwards v. Edwards, 2021 ONSC 1550, at paras. 37 and 44; Boomhour v. Huskinson, 2008 CanLII 26261 (ON SC), at para. 46; Erb v. Erb, 2003 CanLII 2112 (ON SC), at para. 54; Leonard v. Leonard, 2019 ONSC 4848, at para. 55; Musgrave v. Musgrave, 2013 ONSC 7481, at paras. 38-39.

[59] I am satisfied that S. remained financially dependent on Elizabeth in 2016 such that he was unable to withdraw from his parent’s control when he went to live with David for a short period of time in Canada. It is clear from David’s evidence that S. was exploring attending a post-secondary educational program in Canada and that he began to take the steps to upgrade his math courses but, ultimately, decided to return to England. On these facts, I find that S. did not lose his dependant status during 2016 and that David is obliged to pay child support for S. for eight months, except for the four months in 2016 when he came to Canada.

Child Support for 2017

[60] In 2017, S. lived with Elizabeth in Stockport from January to September. S. resumed his studies when he began attending college at SSR Manchester from September to December 2017, where he resided in student housing at Wilmslow Park. While he was in student housing, Elizabeth paid for his food and travel expenses. S. borrowed money to stay in the student accommodation and incurred a debt of £2175, which debt Elizabeth services and pays monthly. I find that S. remained a dependant during the months from January to September 2017 when he resided with Elizabeth and that Elizabeth would be entitled to full table child support for those 8 months. The issue is whether Elizabeth would be entitled to receive full table child support for the months that S. was living out of her home and in student housing from September to December 2017.

[61] Numerous cases in Ontario have found that the table amount of support will likely be inappropriate where the child is residing away from home to attend school. See for example Douglas v. Douglas, 2013 ONCJ 242 at 59, in which Justice Sherr stated, “Although each case must be determined on its own facts, most courts will order the full table amount in the months that the child is living at home, with a lesser amount when the child is away at school.” See also Lewi v. Lewi, 2010 SKCA 16, 345 Sask R 135; Park v. Thomson, 2005 CanLII 21865 (ON CA) and Coghill v. Coghill, 2006 CanLII 28734.

[62] The reasoning behind the court finding that the standard table approach in the CSG is likely to be inappropriate where an adult child resides away from home at a post-secondary institution for a significant portion of the year, is that the custodial parent’s expenses are decreased while that child is away. If the CSG approach is followed when S. was away for much of the year, this could result in David, the payor parent, essentially paying for the upkeep of Elizabeth’s home instead of going toward the support of S. However, in this case, Elizabeth is not seeking that David contribute proportionately to any of S.’s s.7 expenses.

[63] Section 7 of the CSG enables the court, on the request of a parent, to provide for an amount to cover all or any portion of specific 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 parents and those of the child and to the spending pattern of the parents in respect of the child during cohabitation. Of the six categories of expenses listed in s.7 of the CSG, s.7(e) sets out that expenses for post-secondary education qualify as s.7 expenses.

[64] Accordingly, David would be obliged to contribute his proportionate share of S.’s post-secondary educational expenses. Elizabeth did not provide a breakdown of all of these s.7 expenses in her evidence. However, the general cost of post-secondary educational expenses include tuition fees, residence fees, books, and other incidental fees.

[65] The only evidence the court has regarding S.’s post-secondary educational expenses is that the residence fees, which Elizabeth refers to as student housing fees, were £2,575 in 2017. When this court certified The British child support provision order on October 11, 2017, the pound sterling to CAD exchange rate was 1.82. Applying that exchange rate to S.’s student housing fees, which were incurred in 2017, would mean that £2,575 is the equivalent to $4,686.50 CAD. I find that David is obliged to pay his proportionate share of this housing expense for S., but that he is not obliged to pay the table child support for S. to Elizabeth for the four months of September to and including December 2017.

[66] To determine what each parent’s proportionate responsibility would be toward S.’s residence costs, I need to determine the incomes of both parties in 2017. The paystub attached to Elizabeth’s sworn financial statement, demonstrates that in 2014, she was earning £1,265.04 a month, which is the equivalent of $2,277 CAD, using an exchange rate of 1.8, or $27,324.86 a year. Elizabeth deposes that she works part-time. David’s reported income in 2017 was $25,000 a year. I will address David’s income for child support purposes more fully below.

Child Support for 2018

[67] In 2018, S. moved in with Elizabeth’s mother in Stockport as a temporary housing solution while he was taking courses. The evidence before the court is that S. ceased his post-secondary educational studies by November 2018. I find that S. remains entitled to child support for the first 11 months of 2018 because he would have been unable to withdraw from his parents’ charge. While normally, the table CSG approach would be considered inappropriate while S. was residing outside of Elizabeth’s home, there would also be a corresponding s.7 expense for S.’s housing costs. That is not the case in 2018 because S. was residing at his maternal grandmother’s home. In these circumstances, I find it is appropriate for David to pay the table CSG amount for S. in the 11 months of 2018.

[68] In summary, I find that S. would be entitled to table child support for 12 months in 2014; 12 months in 2015; 9 months in 2016 because he was living with David in Canada for January, February, March and June 2016; 8 months in 2017 until he moved out of Elizabeth’s home and into residence; and for 11 months in 2018. In addition, I find that David is obliged to pay his proportionate share of S.s’ residence fees in 2017.

David’s Income for Child Support Purposes

[69] In applying the CSG to the facts of this case, the chart below sets out what David reported his income to be in each calendar year with the corresponding table amount of child support under the CSG:

Calendar Year	David’s Income as reported on his Income Tax Return	Table amount of child support under the CSG
2014	Nil	Nil
2015	$19,909	$161 a month
2016	$30,757	$261 a month
2017	$25,000	$199 a month
2018	No information

[70] Elizabeth argues that David ought to be obliged to pay child support in 2014 even though he did not report any income to CRA. Further, she deposes that from conversations she had with David, she is aware that he was working but not reporting the income from work in certain years. Elizabeth also acknowledges that she has no evidence to prove that.

[71] David is self-employed as a guitar technician, as indicated in his sworn financial statement. David reports that his gross income in 2017 was $33,000 and his net income was $25,000. David has not provided any details of his business expenses. David only provides copies of his Notices of Assessment, so it is impossible for the court to see what David’s business expenses were.

[72] David’s budget, however, set out in his sworn financial statement provides that his monthly expenses amount to $3,637.49 or $43,649.88 a year. David does not explain how he funds this shortfall between his expenses and his income, nor does his list debts in his financial statement to explain that he has borrowed funds to meet his annual or monthly shortfall. On this basis, there is an argument that could be made that income ought to be imputed to David pursuant to s.19 of the CSG because he may be intentionally under-employed or because he unreasonably deducts expenses from his income.

[73] The CSG sets out a non-exclusive list of criteria that would allow a court to impute income to a support payor, including intentional underemployment. The relevant provision states:

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;

[74] The leading Ontario case regarding the imputation of income to a support payor is the decision of the Ontario Court of Appeal in Drygala v. Pauli, 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.). At para. 32 of that decision, the Court described the imputation of income as:

... one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning.

[75] As Chappel J. of the Superior Court Family Division explained in Szitas v. Szitas, 2012 ONSC 1548, at para. 56, citing Drygala:

The Ontario Court of Appeal has held that in determining whether to impute income on the basis that a party is intentionally underemployed or unemployed pursuant to section 19(1)(a) of the Guidelines, it is not necessary to establish bad faith or an attempt to thwart child support obligations. A parent is intentionally underemployed within the meaning of this section if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances.

[76] In reviewing the case law, Chappel J. cites seven principles that apply to the imputation of income to a support payor at para. 57:

a. There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children.

b. Underemployment must be measured against what is reasonable to expect of the payor having regard for their background, education, training and experience.

c. The court will not excuse a party from their child support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self-induced reduction of income is not a basis upon which to avoid or reduce child support payments.

d. If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations.

e. When a parent experiences a change in their income, they may be given a "grace period" to adjust to the change and seek out employment in their field at a comparable remuneration before income will be imputed to them. However, if they have been unable to secure comparable employment within a reasonable time frame, they will be required to accept other less remunerative opportunities or options outside of the area of their expertise in order to satisfy their obligation to contribute to the support of their children.

f. Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them.

g. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute. (Citations omitted).

[77] Amplifying on Chappel J.'s seven points, while I have broad discretion to impute income to a payor, that discretion is not untrammeled. As the Ontario Court of Appeal stated in Drygala at para. 44:

Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

[78] In Drygala the Ontario Court of Appeal set out the following three questions which should be answered by a court in considering a request to impute income under s. 19 (1) (a) of the CSG:

a. Is the party intentionally under-employed or unemployed?

b. If so, is the intentional under-employment or unemployment required by virtue of his reasonable or health educational needs?

c. If not, what income is appropriately imputed?

[79] The test set out in Drygala was refined by the Ontario Court of Appeal in Lavie v Lavie, 2018 ONCA 10. There, Rouleau J.A., speaking for the court, set out a very clear black line test for intentional underemployment. It is one in which the subjective reasons for the underemployment (other than health or education needs) are not relevant. e wrote:

There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala v. Pauli, at paras. 24-37. the reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed. [Emphasis added]

[80] In applying the law of imputation of income to the facts of this case, I place particular weight on the following factors:

a. There is a duty on David’s part, as S.’s parent, to actively seek out reasonable employment opportunities that will maximize his income potential so as to meet S.’s needs. He did not do so in 2014 or 2015, when he earned less than minimum wage.

b. Given David’s background as a guitar technician, and his training, it is expected that he takes advantage of every employment opportunity presented to him. David provides no evidence to the court as to whether he had difficulty finding work.

c. David is self-employed. Given this, the court is entitled to examine whether this choice was a reasonable one in all of the circumstances and may impute an income if it determines that the decision was not appropriate having regard for the parent's child support obligations. Without giving the court any evidence as to his business expenses and/or whether he writes off expenses against his income, the court is not able to properly examine this choice on David’s part.

d. Where a party fails to provide full financial disclosure relating to their income, as David has in this case, the court is entitled to draw an adverse inference and to impute income to him.

e. The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute.

[81] I do not find that David has met his onus under the CSG to set out what his income is for child support purposes. He provides no explanation for why he did not earn any income in 2014. The income levels he reports in 2015 through to and including 2017 are not supported by any financial statements or calculations to explain what expenses he deducted off his self-employment income. Further, David’s own evidence is that his monthly expenses far exceed the income he reports that he earned, and he provides no explanation as to how he meets this shortfall.

[82] I find that David has reported income in 2014 to and including 2017 that is generally lower than a minimum wage income in Ontario, on the following basis:

a. In 2014, the minimum wage in Ontario was $11 an hour.[^8] If David was working full-time, at a minimum wage, he would have earned $22,862 in 2014, instead of nil income as he reported;

b. In 2015, the minimum wage income in Ontario was $11 an hour until October 25, 2015, when it was then raised to $11.25 an hour.[^9] If David was working full, at the minimum wage, he would have earned $22,970 (calculated as $11/hr. x 40 hours x 43 weeks = $18,920 + $11.25/hr. x 40 hours x 9 weeks = $4,050 = $22,970). David reported on his income tax return that his line 150 income in 2015 was $19,909.

c. In 2016, the minimum wage income in Ontario was $11.25 an hour until October 1, 2016, when it was then raised to $11.30 an hour.[^10] If David was working full time, at the minimum wage, he would have earned $23,433,96 (calculated as $11.25/hr. x 40 hours x 4.33 x 10 months = $19,4852 + $11.40/hr. x 40 hours x 4.33 x 2 months = $3,948,96 = $23,433.96). David reported on his income tax return that his line 150 income in 2016 was slightly above minimum wage at $30,754.

d. In 2017, the minimum wage income in Ontario was $11.40 an hour until October 1, 2017, when it was then raised to $11.60 an hour.[^11] If David was working full time, at the minimum wage, he would have earned $23,763.04 (calculated as $11.25/hr. x 40 hours x 4.33 x 10 months = $19,744.80 + $11.60/hr. x 40 hours x 4.33 x 2 months = $4,018 = $23,763.04). David reported on his income tax return that his line 150 income in 2015 was $25,000, just slightly above minimum wage.

[83] Based on the above, David reported earning less than minimum wage income in 2014 and 2015, and only slightly above minimum wage income in 2016 and 2017. As a self-employed, skilled, and experienced guitar technician, David provided no evidence as to why he would only be able to earn just above minimum wage income.

[84] In Ontario, it is a common practice that when a payor does not provide complete financial disclosure and his/her income does not match his/her expenses, the recipient to asks the court to consider the payor’s lifestyle based on the budget articulated in the payor’s sworn financial statement. In these cases, courts have held that it is appropriate to gross up net spending when calculating income for the purposes of child and spousal support: McArthur v. Lee, 2022 ONSC 2110, at para. 13; Adams v. Campbell, 2003 CarswellOnt 3276 at 79; Gonabady-Namadon v. Mohammadzadeh, 2009 BCCA 448, 98 BCLR (4th) 23 at paras 22-25 and 40-44; Hayward v. Hayward, 2015 ONCJ 212, at para. 27; and Li v. Wong, 2010 ABCA 296 at paras 3-7.

[85] I am persuaded that David was earning less than he could have been in those years (2014 to and including 2018), and based on the cases referred to above, I find that he was intentionally underemployed. In these circumstances, I am prepared to draw an adverse inference against David and impute him with an annual income that would allow him to meet his budget of $43,649 net a year. If David earned a gross income of $57,000, that would correspond to him having net disposable income of $43,951, after taxes and deductions, which would allow him to meet the budget set out in his sworn financial statement. Accordingly, I am prepared to impute David with an annual income of $57,000 for each of the years, 2014, 2015, 2016, 2017 and 2018.

[86] Based on my findings above, S. would be entitled to table child support for 12 months in 2014 since Elizabeth; 12 months in 2015; 8 months in 2016, because S. resided with David for 4 months in 2016; for 8 months in 2017, because he moved out of Elizabeth’s home in September 2017; and 11 months in 2018, when he ceased university studies. The chart below details what David owes in table child support based on the imputed income for the number of months to which I have found David is obliged to pay child support for S.

Calendar Year	Imputed Income for David	Table amount of child support under the CSG	Number of Months in each year to which S. was entitled to child support
2014	$57,000	$527 a month	12 months = $6,324
2015	$57,000	$527 a month	12 months = $6,324
2016	$57,000	$527 a month	8 months = $4,216
2017	$57,000	$527 a month	8 months = $4,216
2018	$57,000	$527 a month	11months = $5,797
Total Amount of table child support owing			$26,877

Section 7 Expenses for S. in 2017

[87] In 2017, when S. moved out of Elizabeth’s home into residence, both parents would have been obliged to contribute to these housing costs as a s.7 expenses under the CSG. Imputing an annual income of $57,000 to David and the Canadian dollar equivalent of Elizabeth’s part-time income of $27,324.86, the combined incomes of the parents was $84,324.86. David’s proportionate responsibility toward S.’s residence fees would be 67.5%, and Elizabeth’s proportionate responsibility would be 32.5%. The evidence on the record is that cost of residence was the equivalent of $4,686.50 CAD. Accordingly, David would be obliged to contribute $3,163.38 toward S.’s residence fees as a s.7 expense.

[88] I find, therefore, that the total amount owing by David to Elizabeth toward S.’s child support, including table support and s.7 expenses under the CSG amounts to $30,040.38 for the period January 1, 2014, to and including November 1, 2018.

[89] I confirm the lump sum amount ordered in The British provisional order is payable to Elizabeth within 28 days of the release of this Endorsement.

Are these arrears of child support considered “retroactive”?

[90] In Ontario, the Supreme Court of Canada’s judgment in D.B.S. v. S.R.G.; L.J.W v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, dealt with the jurisdiction of a court to make retroactive child support orders and the relevant factors in the making of those orders. The court makes it clear in the first paragraph of the judgment that a retroactive support order is one that requires payments for a period before the legal action claiming support was commenced. Payments ordered for the period after the action was commenced are not accurately characterized as retroactive. Such orders may, however, may cause immediate arrears if a lengthy time has passed after the claim was issued before being adjudicated.

[91] As section 21 of ISO provides that the provisional order should be treated in this hearing “as if it were a document corresponding to a support application”, the date of that order — November 2014 — is treated by me as the “date of application” in this analysis. Any payments ordered on or after that date would not constitute retroactive payments. Only payments claimed for the period before that date would be retroactive and the analysis in D.B.S. v. S.R.G L.J.W v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231would be applicable.

[92] In this case, Elizabeth does not make a claim for retroactive child support prior to her application, dated January 16, 2014, so it is not necessary for me to undertake the retroactive child support analysis from D.B.S.

Summary of Court Order

[93] This court makes the following order:

a. Pursuant to s.20(4) of the Interjurisdictional Support Orders Act, the provisional order of the Honourable Justices Dr Tuck, Mr. Millard and Mrs. Valins, made in the Family Court at Manchester, dated November 5, 2014, is hereby confirmed at a lower amount of $527 a month, starting January 1, 2014, to and including November 1, 2018 (with the exception of 4 months in 2016 and 4 months in 2017). In accordance with this order, the respondent, David Parkin Coates, shall pay the applicant, Elizabeth Hickling, the sum of $30,040.38 as table child support and a contribution toward s.7 expenses for Shea Noah Hickling, born January 13, 1999, for the period commencing January 1, 2014, to and including November 1, 2018.

b. Pursuant to s.31 of the Family Law Act and the Ontario Child Support Guidelines, the respondent, David Parkin Coates, shall pay the applicant, Elizabeth Hickling, child support for Shea Noah Hickling, born January 13, 1999, in the sum of $527 a month commencing January 1, 2014, to and including November 1, 2018, apart from 4 months in 2016 and 4 months in 2017, and David Parking Coates, shall pay the applicant, Elizabeth Hickling, his proportionate share of S.’s residence fees, namely 32.5% incurred in 2017, in the sum of $3,163.38.

c. For clarity, the total sum owing by the respondent to the applicant under (a) and (b) above, totals $30,040.38 as his obligation to pay the applicant table child support and a contribution toward s.7 expenses for Shea Noah Hickling, born January 13, 1999.

d. Pursuant to s.20(4) of the Interjurisdictional Support Orders Act, the lump sum child support order set out in paragraph 2 of the order of the Family Court at Manchester, case number M14P90101, requiring the respondent, David Parking Coates, to pay the applicant, Elizabeth Hickling, a lump sum of $1,273.44 CAD, is hereby confirmed.

e. The respondent’s obligation to pay child support for S. is terminated as of November 30, 2018.

f. Upon this order being signed and entered, the court staff in Toronto shall, within 3 business days, send a copy of this Endorsement and the issued and entered order to the designated ISO authority in Manchester, England.

g. 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.

September 23, 2022

___________________________

M. Kraft, J.

[^1]: David was not entitled to notice of the provisional order made by the court in Britain.

[^2]: The deposit account history attached to David’s affidavit, as Exhibit “A” are from his partner’s bank account and show withdrawals of $300 a month for the period March 2011 to and including May 2011 and withdrawals of $325 a month for the period June 2011 to and including December 2011, totalling $3,500 and not $3,925 as he deposed. Further, the bank records show that his partner, Emma Wright wrote cheques in that amount but there is no evidence as who the cheques were written to.

[^3]: The deposit account history attached as Exhibit “B” to David’s affidavit, are from his partner’s bank statements and show withdrawals of $325 a month for Jan, Feb., and Mar. 2012; $300 a month for April and May 2012; $500 in the month of June 2012; and $300 a month for July to November 2012, totalling $3,575 and not $3,875 as he deposed. Again, the deposit account history show that his partner Emma Wright wrote cheques in that amount but there is no evidence as to who the cheques were written to.

[^4]: The deposit account history attached as Exhibit “C” to David’s affidavit, are from his partner’s bank statements and show withdrawals of $300 a month for Jan. 2013; $150 a month for Feb.–June 2013, totalling $1,050, as deposed. Again, the deposit account history show that his partner Emma Wright wrote cheques in that amount but there is no evidence as to who the cheques were written to.

[^5]: The deposit account history attached as Exhibit “D” to David’s affidavit are from his partner’s bank statements and show payments to Giff Gaff, a telephone network of $197.62 in 2014, at an average of $12 GMB a month and a total of $100.02 CAD toward Adidas ecommerce for a pair of shoes.

[^6]: The deposit account history attached as Exhibit “E” to David’s affidavit as from his partner’s bank statements and show payments to Giff Gaff telephone network of $413.35 in 2015, not $1,469 as he deposes. There are a number of PayPal payments that reference S. that total $135.14 in 2015. Again, the deposit account history show that his partner Emma Wright withdrew these amounts but there is no evidence as to who received the benefit of these payments.

[^7]: The deposit account history attached to David’s affidavit, as Exhibit “G” are from his partner’s TD bank account and show total withdrawals of $423.97 in 2017 toward S.’s cell phone, not $823.94 as David deposes. Further, the bank records show that his partner, Emma Wright made payments to Giff Gaff in that amount but there is no evidence that S.’s cell phone provider is Giff Gaff.

[^8]: Labour, Training and Skills Development, Backgrounder, “Minimum Wage in Ontario” (25 February 2014), online: https://news.ontario.ca/en/backgrounder/28495/minimum-wage-in-ontario.

[^9]: Labour, Training and Skills Development, News Release, “Ontario Increasing Minimum Wage” (19 March 2015), online: https://news.ontario.ca/en/release/32099/ontario-increasing-minimum-wage.

[^10]: Labour, Training and Skills Development, Backgrounder, “Minimum Wage Increases for October 1, 2016” (18 March, 2016), online: https://news.ontario.ca/en/backgrounder/36191/minimum-wage-increases-for-october-1-2016.

[^11]: Global Affairs Canada, Circular Note No. XDC-7675, “Minimum Wage Rate Increase in Ontario” (22 June 2017), online: https://www.international.gc.ca/protocol-protocole/policies-politiques/circular-note_note-circulaire_xdc-7675.aspx?lang=eng.

Hickling v. Coates , 2022 ONSC 5455

Case Summary