COURT FILE NO.: FC-19-577 DATE: 2022/12/19
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Harold Carmichael and Nathalie Desjardins Applicants
– and –
Christopher Abel and Melanie Moncion Respondents
Counsel: Applicants, Self-Represented Respondents, Self-Represented and not present at motion (in default)
HEARD: October 18, 2022
REASONS FOR DECISION ON UNCONTESTED TRIAL
Somji J.
Overview
[1] This decision addresses the Applicants’ request for retroactive and ongoing child support based on imputed income for the Respondent parents’ two children for whom they are guardians.
[2] The issues to be decided are:
a. Have the grounds to proceed to an uncontested trial been established?
b. Are the Applicants as the children’s custodians entitled to child support from the Respondent biological parents?
c. If so, what income should be imputed to each of the biological parents for the purposes of calculating retroactive and ongoing child support?
Factual Background
[3] The Applicants testified that on/around December 17, 2017, the Respondent mother Melanie Moncion (“mother”) and her children were in a motor vehicle accident. The mother requested the Applicants who were family friends to care for her children while she recovered from her injuries. The Applicants brought the children into their care. The Children’s Aid Society (“CAS”) supported the placement.
[4] On June 4, 2018, Blishen J. made an order placing the children in the temporary care and custody of the Applicants subject to supervision by CAS. This order was granted on a temporary, without prejudice basis.
[5] On January 9, 2019, Shelston J. made a final order placing two of the three children under the legal custody of the Applicants pursuant to s. 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“custody order”). The mother consented to the custody order. The court found the Respondent father Christopher Abel (“father”) in default. Under the court order, the Applicants have full decision-making authority with respect to the children without any requirement for consents or authorizations from the biological parents.
[6] The children are now teenagers and reside full time with the Applicants along with their 17-year-old son. K.A. is 14 and the other child also with initials K.A. is 16 (“children”). The mother continued to have care of her eldest child K.M. who is presently 18.
[7] The mother has not seen or contacted the children since December 29, 2020. At the time of the accident, the father had minimal involvement with the children. He supported the children remaining in the care of the Applicants.
[8] When the custody order was rendered on January 9, 2019, no order for child support was made. However, the mother had previously entered into a verbal agreement to pay the Applicants $500/month in support of the children based on an income of $33,000/year. This amount was later reduced to $410/month based on an annual income of $27,000/year. All support payments by the mother ended in September 2019 without explanation.
[9] The Applicants understand from their conversations with the mother that she received a settlement from the car accident upwards of $600,000 none of which has been shared with the Applicants for the support of the children or placed in trust for the benefit of the children. They believe the children were on the original statement of claim but excluded in the final settlement. The Applicant Mr. Carmichael attested that following the accident, the mother had promised, in good faith, to pay the Applicants $5,000 to compensate them for assisting with the care of the children once she settled her tort action. They never received any funds.
[10] According to the Applicants, the father has maintained contact with the children. He comes to see the children on average once month. During the visits, he will sometimes provide the children with expensive gifts or cash. The Applicants testified that the father has worked for ProMove for many years. He has made random support payments to the Applicants over the years in amounts varying from $150 to $500. The father does not pay the Applicants directly because he does not have a bank account, but he arranges for Interac e-transfers through his friends and the owner of ProMove.
ISSUE 1: Have the grounds to proceed to an uncontested trial been established?
[11] The matter proceeded to an uncontested trial before me on October 31, 2022. The Applicants attended and were self-represented. The Respondents were not present having been noted in default.
[12] In support of their application, the Applicants rely on the following:
a. Notice of Application Harold Carmichael dated March 29, 2019;
b. Affidavit of Harold Carmichael dated September 14, 2022;
c. Affidavit of Allison Lalonde dated June 7, 2019, re service on the father;
[13] In addition to the limited materials filed on the uncontested motion, I have examined and relied on the historical pleadings filed to understand the procedural history of this motion.
[14] Mr. Carmichael commenced an Application seeking child support from both the biological parents on March 29, 2019. The Application was served on the mother on May 23, 2019.
[15] A first appearance was schedule for June 10, 2019. At that time, the mother attended with counsel. Several attempts were made to serve the father without success. Consequently, Master Fortier (as she was then) made an order for substituted service to serve the father through his Facebook account and he was served on July 10, 2019.
[16] The mother filed an Answer dated August 20, 2019, wherein she indicated that no part of the civil settlement she received was for the children. A portion of the settlement went to medical costs and legal fees. The remaining amount was said to be designated for her ongoing medical treatment and to subsidize her income while she was not working. She also claimed that there was a misunderstanding with respect to the amount she received from the settlement.
[17] Both parents were present at a case conference on November 22, 2019. Justice Kershman issued a consent order where both parents agreed to serve Answers and supporting documentation within 30 days. The mother was also ordered to provide a letter from her personal injury lawyer verifying that the children did not receive a settlement from the accident along with evidence of her inability to work as of September 2019. None of that documentation has been provided.
[18] A further case conference was held before Doyle J. on February 10, 2020. Both parents were present. Doyle J. again ordered the mother to provide additional disclosure regarding, one, how long she had been employed; two, her T4 for 2019 and onwards; three, her efforts to find full time employment; four, her civil settlement; and five, evidence demonstrating she provided the Applicants $5000 to compensate for the care of the children. That disclosure has not been provided. The Applicants maintain they were never paid a lump sum of $5000 from the settlement.
[19] Doyle J. ordered the father to provide disclosure regarding his employment and a recent paystub as well as his Notice of Assessment for 2019.
[20] Doyle J. also permitted the Applicants to bring a motion on disclosure and child support.
[21] In addition to these court orders, it is important to note that correspondence from the Applicants’ former counsel with the mother dated May 28 and December 18, 2019, indicates that the Applicants’ request for proof of the mother’s income and contributions for child support have been ongoing.
[22] In March 2020, the pandemic was upon us. There was not further activity on ths file until January 26, 2022, when the matter was scheduled for a case conference. Case conference materials were filed on both parents. The mother attended but the father did not. Associate Justice Fortier noted that this was the third case conference on this matter and that the parents had still failed to produce documents ordered by Justices Kershman and Doyle in 2019 and 2020. Fortier AJ ordered: one, financial disclosure including updated income tax returns, T4 slips, and proof of income for the years 2018, 2019, and 2020 from both parents within 30 days; two, the mother’s bank statements within 60 days; and three, disclosure of the mother’s civil settlement in 30 days; and four, the parents’ income tax returns for 2021 as soon as they are produced and available. She also ordered the parents to advise the Applicants of any change in employment status or income. Fortier AJ. ordered the parties were required to familiarize themselves with the Family Law Rules and adhere to requirements including deadlines. None of the documents requested were ever provided by the parents.
[23] On August 15, 2022, the matter proceeded before Justice Muszynski for a fourth case conference. The parents did not attend. Justice Muszynski ordered the parents in default effective immediately. The Applicants were entitled to contact the Trial Coordinator for a date to proceed to an uncontested trial on the issue of child support. Justice Muszynski ordered the Applicants to file affidavits and provide support for their estimates of the parents’ present incomes. Both the endorsements were forwarded to the mother by the court, but the father has not provided a mailing or email address to the court.
[24] On September 14, 2022, the Applicants filed motion materials to proceed to an uncontested trial. Given the parents have been declared in default, they were not served with the materials and did not attend for trial.
[25] An “uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”
[26] Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for a respondent to file an Answer in 30 days failing which the consequences set out in paragraphs 1 to 4 of r. 1(8.4) apply: r. 10(5). One of those consequences is the option to proceed to an uncontested trial. In this case, the father failed to file an Answer and was noted in default on September 14, 2022. I am satisfied the matter can proceed as an uncontested trial accordingly.
[27] Although the mother did file an Answer in August 2019, she has failed to comply with subsequent disclosure obligations made in three court orders issues since 2019. Therefore, pursuant to rules 1(8)(c) and 1(8.4) FLR, the mother’s Answer is struck, and this matter can proceed to an uncontested trial. This is consistent with the endorsement of Muszynski J. ordering both parties in default.
[28] I am satisfied that the requite conditions have been met to proceed to an uncontested trial.
ISSUE 2: As the children’s custodians, are the Applicants entitled to child support?
[29] Child support is governed by Part III of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). Section 31(1) of the FLA enshrines a child’s right to support by creating a parental obligation to provide support, to the extent a parent is capable of doing so, for an unmarried child who is (a) a minor, (b) enrolled in a full-time program of study, or (c) unable by reason of illness to withdraw from the charge of their parents. In short, pursuant to s. 31(1), the respondent biological parents have a legal obligation to provide support for the children.
[30] The court has jurisdiction under s. 33(1) of the FLA, on application, to order support for a person’s dependents and to determine the amount of support. s. 29 of the FLA defines a “dependant” as a person to whom another has an obligation to provide support.
[31] The application for an order for support may be made by the dependant or the dependant’s parent: see FLA, s. 33(2). A “parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family: s.1(1) FLA.
[32] In this case, the Applicants have demonstrated a settled intention to treat the children as part of their family by caring for the children since 2017 and by obtaining legal custody of the children in January 2019. Therefore, they are by definition parents of the dependant children and are entitled to apply for support as they have done in this case: s. 33(2) FLA.
[33] It is important to note that s. 33(7) FLA reiterates that the purposes of an order for support of a child is to recognize that each parent has an obligation to provide support for children and to apportion the obligation according to the Child Support Guidelines.
[34] Section 34(1) sets out the powers of the court in an application for support under s. 33. The court may make an interim or final order. The court also has broad discretion to order amounts be paid periodically, in lump sum, to be held in trust, indefinite or time limited, payable to the applicant, court, or agency for the dependent’s benefit, and payable retroactive to the order.
[35] A court ordering child support must do so in accordance with the child support guidelines: s. 33(11) of the FLA.
[36] Based on the legal framework set out in the FLA, I find that the Applicants are entitled to retroactive and ongoing child support for the dependent children.
ISSUE 3: If the Applicants are entitled to child support, what income should be imputed to each of the biological parents for the purposes of calculating child support?
a. Ongoing child support for the mother and father
[37] The Applicants seek retroactive and ongoing child support since the children came into their care on December 18, 2017.
[38] The Applicants testified that together they earn together just under $75,000 They forwarded me their tax and pay information which indicates Ms. Desjardins earned approximately $46,295 in 2021 and Mr. Carmichael earned $28,588. On this household income, they support a family of five which includes three teenage children. They do not own their house. They rent a home in Stitsville, Ontario, for about $1200 per month. The children were enrolled at one time in cadets, but the Applicants can no longer afford the cost of that activity. The children engage in activities with their school. The Applicants have no savings to finance the children or their own biological son’s post-secondary education. As Mr. Carmichael candidly stated in court, we will figure it out when we get there.
[39] Ms. Desjardins also testified that K.A. was recently sore in the rib area and an x-ray at the Children's Hospital of Eastern Ontario in August 2022 suggested she may have had a displaced rib because of the previous 2017 car accident. She is not presently engaged in any therapeutic or rehabilitative treatment for that injury. The Applicants have relied on the Healthy Smiles program to finance the children’s dental care.
[40] In the mother’s Answer dated July 17, 2019, she indicated that at the time she earned $1 above minimum wage as a single parent. The mother also stated she had a third child, the eldest of her three, who she continued to care for after the accident and is not subject to this application.
[41] The mother acknowledged that she did receive a settlement for her personal injury claim, but the monies went to compensate for medical costs, for legal fees, and time off work. The mother also indicated that she paid the Applicants $5,000 after they became the children’s caregivers and after the involvement of the CAS, she continued to pay $500/month until May 2019 when she requested it be adjusted to $410 to reflect her salary at the time. The mother indicated at the time that she did not have appropriate housing and had to move in with her mother with the eldest child. She indicated in her affidavit that there was little of the settlement money left. The mother did not specify how much she received and following subsequent orders for disclosure by this court, has still not provided any evidence to the Applicants or this court of the exact nature of her settlement. The mother also stated in her affidavit that she would consider purchasing life insurance for the support of the children, but the court has no information if she did.
[42] The mother filed her income tax returns for 2016 and 2017 with her Answer indicating that at the time she was working for Sheffield Storage. Her 2017 income is reported at $12,758. A pay stub from Sheffield Storage for March 10 to March 23, 2019, suggests she continue to work there 44.25 hours a week at $16/hour.
[43] On May 21, 2019, the mother’s counsel wrote to the applicants indicating that the mother’s income for 2018 was approximately $31,224 and that her pay stubs for 2019 indicate an income of $20,288. She proposed to resolve the matter of monthly child support with a payment of $410/month in accordance with the Guidelines and based on an annual income of $27,000. The Applicants agreed. However, as already noted, all child support payments ended by September 2019. The mother has also failed to provide updated financial information of her income since that time and for the years 2020, 2021, and 2022, despite three court orders.
[44] The court may draw an adverse inference against a party that has failed to provide financial disclosure and impute income it considers appropriate: ss. 19 and 23 Child Support Guidelines, O. Reg. 391/97; see also parallel provisions in the Federal Child Support Guidelines, SOR/1997-175, ss. 19 and 23.
[45] Affidavit evidence may be relied on at an uncontested trial unless the court directs that oral evidence be given: see FLR, r. 23(22). In this case, I directed both Applicants to testify under oath about the events leading up to their guardianship, the current relationship between the biological parents and children, their present earnings and expenses, the costs related to raising the children, and their attempts to obtain financial disclosure and child support from both the biological parents. I also questioned the Applicants on their knowledge of the biological parents’ current employment situation and earnings for the purposes of determining what, if any, income can be imputed to the biological parents for the purposes of child support.
[46] The Applicants report in their affidavits that upon completion of her rehabilitation, the mother found employment with Tippet and Richardson and then later at Sheffield Moving and Storage. The Applicants understand the mother has continued to work and is presently employed at Dymon Storage at 300 Greenbank Road, Ottawa, Ontario, as a mover. Ms. Desjardins called Dymon Storage in July 2022 on the pretense that she was looking for moving services. She asked the front desk if she could request a specific mover and when they said yes, she inquired if the mother worked there. They confirmed she did. Ms. Desjardins said she would call back when she had confirmed her moving date.
[47] The father has failed to file an Answer or financial disclosure to discern his income. A party’s failure to file an Answer does not preclude the need to ensure that proper evidence is filed by the Applicants to enable a family court judge to make an order for the relief sought: E.S.R. v R.S.C., 2019 ONCJ 381, at para. 208; CAS v J.U. and B.P.-M., 2020 ONSC 3753, 42 R.F.L. (8th) 373, at para. 10.
[48] While the father has paid child support in the past, the payments have been sporadic and in random amounts.
[49] According to both Applicants, the father has worked as a mover for ProMove located at 209 Westbank Rod in Carp, Ontario, for possibly as long as 10 years. They understand he gets paid by the owner of ProMove, Mike Avon. The father does not pay the Applicants child support directly as he does not have a bank account, but arranges for Interac e-transfers through his friends and Mike Avon. Copies of some Interac payments were filed as exhibits at trial. The Applicants believe both parents continue to work.
[50] Child support may be ordered on imputed income: Federal Child Support Guidelines, s. 19(1). However, there must be some evidentiary basis for the imputation as well as a rational basis for the amount chosen: Drygala v Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 44. To impute anything more than a minimum wage income, the court needs to have some evidence upon which to make such a finding: Dassin v Perpignan, 2021 ONSC 1066, at para. 8.
[51] It is difficult to gauge the parents’ wages given the lack of information on the precise nature of their jobs for each of the moving companies or the number of hours they work. Nonetheless, I am satisfied that there is a sufficient basis to impute full-time work at minimum wage based on the information provided by the Applicants.
[52] The annual salary for a person working 40 hours/week and earning minimum wage income in Ontario is $31,460. Guidelines child support on the basis of that imputed income is $481/month. There will be an order that each biological parent is ordered to pay Guidelines child support $481/month commencing January 1, 2023. While the Guidelines contemplate for an order of support from one spouse to another spouse, I find a monthly amount of support from both biological parents totaling just under $1000/month is fair and reasonable in these circumstances given the needs of the children and the limited finances of the Applicants.
b. Retroactive child support for the mother and father
[53] In Colucci, the Supreme Court of Canada revisited the legal framework for determination of applications to increase or decrease child support retroactively.
[54] For applications to increase support, the new legal framework requires the receiving parent to establish a material change in circumstances which includes a change in the payor’s income. While the onus is on the recipient to show a material increase in the payor’s income, where the payor fails to disclose the financial information, the court may impute income, strike pleadings, draw adverse inferences and award costs: Colucci at para 114(a).
[55] Furthermore, once a material change in circumstances in the payor’s income is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase: Colucci at para 73. A recipient is no longer required to demonstrate as a preliminary matter that a retroactive award is appropriate based on the factors set out in D.B.S. v S.R.G., 2006 SCC 37: Colucci at para 73. It is only if an award retroactive to the date of effective notice would be unfair that the court retains discretion to depart from the presumptive date of retroactivity. It is in the exercise of this discretion that the court is to consider the D.B.S. factors also set out in Michel v Graydon, 2020 SCC 24. These factors are the delay in bringing the application, the circumstances of the children, blameworthy conduct on the payor parent, and whether there would be any hardship on imposing a retroactive order. Once entitlement is determined, the Court is to use the Guidelines in quantifying the proper amount of the support for each year since the date of retroactivity: Colucci at para 114.
[56] In this case, the Applicants brought an application for child support from the parents in March 2019. The matter has dragged out while they await the parents’ compliance with court orders requiring them to provide updated financial disclosure. The delay was further impacted by COVID-19. The mother was given another opportunity to provide financial disclosure in January 2022 and still has not been forthcoming. The Applicants have been nothing but patient and were cooperative even in 2019 when they agreed with the mother to lower the payment to $410/month. The mother then ceased payments altogether. As already indicated, the Applicants are a family of limited financial means supporting a household with three teenage children.
[57] While the Applicant would be entitled to child support retroactive three years from the date of notice in March 2019, I find an order dating back to March 2016 would not be appropriate in his case. Both parents have provided some support, albeit inconsistently, up to September 2019. It would be a challenging task to account for those exact amounts and subtract them from what the Applicants would have been entitled to. For this reason, the order for retractive support will be from October 1, 2019, and in accordance with the following known and imputed incomes.
Table - Mother’s income and retroactive child support owing
| Mother’s Annual Income | Guideline support | Child supported owed by mother |
|---|---|---|
| 2019 – agreed at $27,000 | $410 | Oct, Nov, Dec 2019-$1,230 |
| 2020 imputed at minimum wage (40 hr/week) $29,250 | $433 | 12 months - $5,196 |
| 2021 imputed at minimum wage (40 hr/week) is $29,692 | $455 | 12 months - $5,460 |
| 2022 imputed at minimum wage (40 hr/week) is $31,460 | $481 | 11 months - $5,291 |
| Total | $17,177 |
[58] The mother shall pay retroactive child support to the Applicants in the amount of $17,177 within 30 days of this Order.
[59] The Applicants were able to locate a copy of the father’s 2018 income tax return which indicates annual income earned of $17,481 as well as other bits and pieces from statements of employment insurance for the years 2020 and 2021 in the form screen shots. These documents suggest the father received $15,670 and $19,5000 in employment insurance benefits in 2021. Consequently, the father’s retroactive child support amounts owing based on known and imputed income is as follows:
Table Father’s income and retroactive child support owing
| Father’s annual income | Guideline support | Childe support owed by the father |
|---|---|---|
| 2019 – unknown – imputed at minimum wage (40 hr/week) $ 29, 120 | $446 | Oct, Nov, Dec 2019-$1,338 |
| 2020 – $15,670 | $193 | 12 months - $2,316 |
| 2021 - $19,500 | $303 | 12 months - $3,636 |
| 2022 – imputed at minimum wage-$31, 460 | $481 | 11 months - $5,291 |
| Total | $12,581 |
[60] The father shall pay retroactive child support to the Applicants in the amount of $12,581 within 30 days of this Order. The father shall be credited for any payments made since September 2019 upon demonstrating proof of payment.
[61] Given that there will be an order for the payment of support by two persons rather than just one person which is what the Guidelines contemplate (i.e. one spouse to another), I would have some discretion to reduce the total amount. However, the amounts ordered are nominal and I do not find that if paid, the quantities received by the Applicants would be excessive given the Applicants limited means and the children’s needs during these past years.
c. Enforcement of child support under FRO
[62] There will be a support deduction order to allow for the payment of child support through the Family Responsibility Office. The Applicants had originally requested this but in 2019 when the mother requested to reduce support from $500 to $410, she requested that the payments not be enforced through the Family Responsibility Office. The Applicants did not contest it and consequently, a support deduction order was never issued.
[63] There will be a Final Order that:
a. Commencing January 1, 2023, the respondent mother shall pay Guideline child support in the amount of $481/month to the Applicants on the basis of an annual imputed income of $31,460.
b. Commencing January 1, 2023, respondent father shall pay Guideline child support in the amount of $481/month to the Applicants on the basis of an annual imputed income of $31,460.
c. The mother will pay retroactive child support to the Applicants for the years October 2019 to January 2023 in the amount of $17,177 within 30 days of this Order.
d. The father will pay child retroactive child support to the Applicants for the years October 2019 to January 2023 in the amount of $12,581 within 30 days of this Order.
e. Unless this support order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay than to the person to whom they are owed.
Costs
[64] The Applicants attended for four case conferences and an uncontested trial. They had previously retained counsel when the application was first filed in March 2019.They are now self-represented. Costs are in the discretion of the judge. Having considered that the Applicant’s are the successful party, the parents’ conduct in failing to provide disclosure resulting in delays, and the absence of any information to suggest the parents do not have any ability to pay, I find that a costs award in the total amount of $1000 is fair and reasonable in this case. There will be an order that the mother and father will each pay the Applicants costs in the amount of $500 within 30 days of this order.
[65] Costs incurred for the purposes of support are enforceable by FRO pursuant to s. 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31(“Act”); see also Wildman v Wildman (2006), 82. O.R.(3d) 401 (C.A.); Scipione v Scipione 2015 ONSC 5982 at para. 142. In this case, the only issue in the application related to child support. The costs award constitutes the Applicants’ time and expense in relation to support or maintenance, and as such, should be enforceable by the Director of the FRO pursuant to s. 1(1)(g) of the Act.
[66] There will be a Final Order that:
a. The respondent parents will each pay costs in the amount of $500 to the Applicants within 30 days of the Order.
b. The costs award relates to support within the meaning of section 1(1)(g) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 and a such, is enforceable by FRO.
c. Unless the support order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director and any amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
Somji J.
Released: December 19, 2022
COURT FILE NO.: FC-19-577 DATE: 2022/12/19
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Harold Carmichael and Nathalie Desjardins Applicants
– and –
Christopher Abel and Melanie Moncion Respondents
REASONS FOR DECISION ON UNCONTESTED TRIAL
Somji J.
Released: December 19, 2022