COURT FILE NO.: FC542/20
DATE: 2022/02/09
SUPERIOR COURT OF JUSTICE – ONTARIO
FAMILY COURT
RE: Tiffany-Lynn Odette Bee, Applicant
AND:
Warren Michael Bee, Respondent
BEFORE: T. PRICE, J.
COUNSEL: Applicant - Unrepresented
Respondent - Unrepresented
HEARD: In Chambers, pursuant to the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13
ENDORSEMENT
Nature of Proceeding
[1] The Applicant, Tiffany-Lynn Odette Bee (hereinafter, Tiffany-Lynn), who resides in Alberta, applied, pursuant to the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13, (the ISO) on September 27, 2019, for an order varying a consent support order made by Justice G. B. Edward in the Ontario Court of Justice on June 3, 2009 in a proceeding brought against her by the Respondent, who is identified therein as Warren Michael Bee, but who notes in his Answer in this proceeding that his correct name is Michael Warren Bee (hereinafter, Michael).
Background – Terms of Original Order
[2] The order required that Michael pay child support to Tiffany-Lynn in the amount of $400.00 per month commencing July 1, 2009 and on the first day of each month thereafter for two children, K. B., born April 19, 2003 and R. L., born March 25, 1997.
[3] The order contained a number of “findings” set out as a preamble. Like the operative terms of the order, the findings were made on consent.
[4] The findings included the following:
a. that Michael had lived with Tiffany-Lynn and R. since R. was two years of age and, as a result, Michael “stood in the place of a parent” to R.;
b. that Tiffany-Lynn was receiving support from R.’s father pursuant to the terms of a child support order;
c. that Michael was the father of two children from a prior relationship and that he was under an order to pay child support for those two children;
d. that both Tiffany-Lynn and Michael were employed full-time, with Michael earning “approximately $51,000.00 per year” and Tiffany-Lynn earning “approximately $40,000.00 per year”; and
e. that the parties had agreed that the terms to which they had agreed constituted “a reasonable arrangement for child support, made on consent in accordance with s. 33(14)(a) of the Family Law Act.”
[5] The order provided that the $400.00 per month that Michael was to pay as child support to Tiffany-Lynn was determined under the Ontario Child Support Guidelines, O. Reg. 391/97, adjusted in accordance with s. 10(2)(c) thereof.
[6] The order further noted that it would cause undue hardship to Michael if he were to be required to pay full Guideline child support which, based upon his annual income of approximately $51,000.00, would amount to $768.00 per month for two children.
[7] To alleviate the undue hardship that the parties agreed would be visited upon Michael as a result of his legal obligation to support his two other children, the court reduced the $768.00 per month that would otherwise be payable by Michael pursuant to the Child Support Guidelines by 48 percent, yielding the $400.00 per month specified in the order.
[8] Justice Edward did not specify what he viewed as a “reasonable time for the satisfaction of” Michael’s obligation to support his two older children, which was the cause of his undue hardship and the reduction in the amount that he was to pay Tiffany-Lynn, as he could have done pursuant to s. 10(5) of the Child Support Guidelines.
Evidence of Tiffany-Lynn Bee
[9] She deposed that, between 2010 and 2013, she sent emails to Michael asking for financial information so that she could adjust child support but was never given any such information.
[10] She followed up, contacting him by telephone and spoke with him on a few occasions, as well as with his current spouse, and was told that she would not be provided with any financial information or be informed where Michael was employed.
[11] Eventually, however, Michael agreed in June 2019 to increase his child support payment by $200.00 per month.
[12] She further deposed that she has also never received any s. 7 payments from Michael.
[13] Appended as exhibits to her affidavits are emails bearing the following dates:
a. September 16, 2010, in which she informed Michael that he failed to provide her with his notice of assessment and income tax return, to which she was entitled “to keep the amount of child support I am entitled to.” She further wrote that she “may need to pursue the guidelines amount.”
b. October 29, 2010, in which she wrote that “[t]he amount of child support will be adjusted to the guideline amount of $768.00.”
c. November 3, 2010, in which she wrote, “I am also expecting a copy of your income tax return for last year which I have asked for a few times yet you refuse. I need the amount in order to get the child support adjusted.”
d. November 23, 2010, in which she asked that Michael “please send a copy of your 2009 income tax return to me ...”
e. December 13, 2010, in which she wrote, “Also still asking for your income tax returns in 2009. Soon it will be 2010 income tax so I would appreciate this information as I am entitled to know it and it is against the law for you to try and keep it a secret.”
f. December 17, 2010, in which she wrote, “I will expect the Sun Life paperwork and your financial income tax information when you pick up K.”
g. January 10 [year not noted, but seemingly 2011], in which she wrote, “And as mention (sic) in many previous emails I still don’t have a copy of your 2008 or 2009 income tax and soon 2010 will be due. I would like this to be on record so … I have proof that you refuse to provide this information when I proceed in court for the arrears that are due to me.”
h. October 9, 2013, in which she wrote, “I saw a lawyer and I am filing the paperwork to have my child support increased to guideline amount, with arrears since you have not increased your child support or provided me any income tax statements since I agreed to the lesser amount of support in 2009. I agreed to 52% less, taking $400 instead of the ordered amount of $768.00. This is no longer visible. (sic) Section 7 expenses will also be added and health and dental coverage which you are choosing to not provide.”
[14] In one of the ISO documents filed by Tiffany-Lynn, she noted that she was claiming “only the Child Support Guidelines table amount” for K., plus orders that Michael “obtain or maintain medical insurance coverage for the child”, that he “obtain or maintain dental insurance coverage for the child” and for “retroactive child support starting as of the day prior to the date of this application.” No date was filled in on the form.
[15] When asked to provide an explanation for why she was requesting retroactive child support, she wrote that she agreed to the reduction in child support in 2009 because she was making an income not substantially less than that of Michael “and he agreed to help in other ways financially.” She deposed that he did not provide such help and that she “only received my $400 a month and not a penny more for anything else.”
[16] She further deposed that Michael did not help with any s. 7 expenses or any extracurricular activities, “even though he was supposed to pay up to $500 per year.” She also deposed that he “refused to provide me with his notice of assessment each year.”
[17] She noted that Michael agreed to increase child support by $200.00 per month after a conversation between the parties June 2019 about child support, although he refused to provide her with any financial information. She wrote that she “let him know I would go to court as I need this money for my daughter.”
Evidence of Michael Bee
[18] In his Answer, Michael indicated that he does not agree with Tiffany-Lynn’s claims. He also filed an affidavit sworn September 3, 2020 in support of his position.
[19] He confirmed having two children from a prior relationship, one born February 21, 1996 and one born August 24, 1998. He also has a stepdaughter from his current marriage, born December 4, 2007.
[20] He provided background information about consenting to Tiffany-Lynn moving to Alberta with K. on the premise that she would continue to foster a relationship between K. and him and that he would have access to her at least once a month. However, he complained that, since the move, he has only seen K. sporadically and inconsistently, primarily in the summer.
[21] He also complained that Tiffany-Lynn did not advise him of address changes, nor did she notify him when taking K. out of the country, both contrary to orders of Justice Edward.
[22] He deposed that his income in 2019 was $114,000.00, which included $15,000.00 withdrawn from an RRSP “to pay my debt and expenses.”
[23] He denied Tiffany-Lynn’s claim that the reduced child support ordered by Justice Edward in 2009 was in exchange for other financial considerations. The reduction was the result of his child support payments for the two other children, his limited income and the fact that Tiffany-Lynn was receiving child support for R. That is consistent with the content of the order.
[24] He provided proof that he paid $400.00 per month to the FRO beginning July 1, 2009 and every month thereafter.
[25] He deposed that R. turned 18 years of age on March 25, 1997 and that Tiffany-Lynn did not notify FRO that his child support obligation for R. had ended. Notwithstanding, he has continued to make the payment of $400 per month. R. is 23 years of age.
[26] He confirmed that, in July 2019, he and Tiffany-Lynn agreed that he would pay her an additional $200.00 per month in child support commencing September 2019. He denied the claim of Tiffany-Lynn that he has not made the payments agreed upon.
[27] He responded to Tiffany-Lynn’s complaints that he did not provide financial disclosure by noting that “the Final Order makes no mention of me having to provide such disclosure. I have been following the terms of the Final Order.” He did acknowledge that Tiffany-Lynn “made requests for further financial disclosure from me.”
[28] He further deposed that “over the years,” Tiffany-Lynn only provided him with vision and dental receipts for K., which he submitted to his insurer. He further deposed that he continued to pay premiums to ensure coverage for K. He indicated that, other than those receipts, he did not receive any other claims for s. 7 expenses from Tiffany-Lynn. He provided a copy of his claim history from Canada Life to support his assertions.
[29] In a supplementary affidavit sworn November 26, 2021, to which Michael appended most, but not all, of the income tax information that Justice Korpan, on October 14, 2021, had ordered him to produce, Michael deposed that the “Family Responsibility Act” of 1996, which allegedly pertained to the orders in this case, required “a written formal request to the court” for any changes. He deposed that he received no such request from Tiffany-Lynn or the court “to bring a motion of judgement or request to vary support order/retroactive payments” until he was served in July 2020 with the proceedings under the ISO.
[30] He further wrote about the relationships that Tiffany-Lynn had in Alberta, indicating that “it wasn’t until July 27, 2020 [that] she requested to vary the support order and also requested retroactive pay.” He also wanted it noted that Tiffany-Lynn has recently remarried.
Law and Analysis
[31] The Supreme Court of Canada has, over three cases, articulated how courts are to address cases where retroactive changes to support are sought.
[32] In D.B.S. v. S.R.G., 2006 SCC 37, [2006] S.C.J. No. 37, the court determined that there is a set of “core principles” which apply in respect of parental child support obligations. They include child support being the right of the child and that the specific amounts of child support owing will vary based upon the income of the payor parent. (para. 38)
[33] The Supreme Court further held that “a recipient parent may claim retroactive support … where there has already been a court order for child support, but this amount has been inadequate for some time,” noting that the “most common cause for” this type of application “would be an increase in the payor parent's income that is not reflected by an increase in the amount of child support paid.” (D.B.S., at para. 62)
[34] The court recognized that parents who have diligently paid the child support ordered by a court should have some protection against retroactive changes for having done so, but that parents “should not have the impression that child support orders are set in stone. Even where an order does not provide for automatic disclosure, variation or review … there is always the possibility that orders may be varied when … underlying circumstances change.” (D.B.S., at para. 64)
[35] Michael has satisfied me that he has been complying with the payment of his monthly child support obligation as determined by Justice Edward in 2009. On that issue only, he would be presumptively entitled to rely on the certainty that the 2009 order gave him that he would not be shirking his child support obligation so long as he paid the ordered support.
[36] However, the Supreme Court further held in D.B.S. that the authority of a court to change child support based on a previous order, where the payor parent has been complying with that order, is “triggered by a material change in circumstances”, an event which includes “an increase in income that would alter the amount payable by a payor parent.” (D.B.S., at para. 66)
[37] In one of the forms that Tiffany-Lynn was required to complete under the ISO, when asked about any material changes in her circumstances, she wrote that she filed for bankruptcy in 2016 and notified Michael about her financial struggles. She further noted that her income increased as a result of a second job between 2017 and 2019 but that job was to end late in 2019, when her income would revert to the lesser sum of $39,000.00 per year.
[38] When asked to provide details about Michael’s change in circumstances, she deposed that she had none “except he makes more money than he did in 2009 when we separated. He won’t provide me with any financial details.” She deposed that she “believe[d]” that Michael’s income had “changed drastically” since 2009, speculating that this was the reason he would not disclose it to her.
[39] On this latter point, the financial information provided by Michael clearly establishes that his income has increased substantially over the years to such an extent that the amount of child support he would be paying based on his increased incomes at various points in time would be greater than that ordered by Justice Edward in 2009. That constitutes a material change in circumstances.
[40] I am also satisfied that there has been an additional “material change” in Michael’s financial circumstances since the making of Justice Edward’s original support order. Michael was able to obtain a reduction in the amount of child support that he was required to pay to Tiffany-Lynn for their daughter because he also had child support obligations for his two children from a prior relationship. That was noted in Justice Edward’s order as being the basis for a reduction in child support. According to the order requiring Michael to pay full child support, given the number of children he was supporting, constituted “undue hardship.”
[41] In his affidavit sworn November 26, 2021, Michael deposed that he paid child support for those two children “until May 4, 2017.”
[42] I find that, at that time, the basis for Justice Edward’s finding of “undue hardship” ended. That constituted a material change in circumstances, which “triggered” the court’s authority to re-consider the amount of child support that he was paying to Tiffany-Lynn.
[43] This case is subject to the Family Law Act, R.S.O. 1990, c. F.3. It provides for a similar result. Specifically:
a. s. 37(2.1(a)) provides that, “[i]n the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines …, the court may … vary … a term of the order, prospectively or retroactively …”; and
b. s. 37(2.2) provides that “[a] court making an order under subsection (2.1) shall do so in accordance with the child support guidelines.”
[44] Section 14.1 of the Ontario Child Support Guidelines make clear that, “[f]or the purposes of s. 37(2.2) of the [Family Law] Act” ,“where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child” “constitutes a change in circumstances that gives rise to the making of a variation order.”
Retroactivity Claim
[45] The question then arises: what is to be done about the fact that Tiffany-Lynn only commenced this proceeding in 2019? Is she to be deprived of her claim for changes in child support back to 2009 based on the material changes in Michael’s circumstances thereafter because of her delay in seeking to change child support?
[46] In D.B.S., having set out the conditions under which a court can consider a retroactive claim for changed child support, the Supreme Court set out four “factors” for consideration when faced with a claim for retroactive child support. They include an examination of whether there is a reasonable excuse for the payee parent not seeking support earlier; the conduct of the payor parent; the circumstances of the child; and whether a retroactive award would cause hardship.
Reasonable Excuse for Recipient Not Seeking Support Earlier
[47] In D.B.S., the court held that “the circumstances that surround the recipient's choice … not to apply for support earlier will be crucial in determining whether a retroactive award is justified.” (para. 100)
[48] The court further held that, amongst reasonable excuses justifying a delay in seeking an increase in child support are the recipient parent “lacking the financial or emotional means to bring an application.” However, “a recipient parent will generally lack a reasonable excuse where (s)he knew higher child support payments were warranted but decided arbitrarily not to apply.” (para. 101)
[49] The court continued, writing that “the difference between a reasonable and unreasonable delay often is determined by the conduct of the payor parent.” (para. 102)
[50] Lastly, in respect of this factor, the court held that unreasonable delay by the recipient parent does not necessarily mean that the obligation of the payor parent to increase child support payment is eliminated. Instead, unreasonable delay on the part of the recipient parent is “merely a factor to consider in deciding whether a court should exercise its discretion in ordering a retroactive award.” (para. 104)
[51] In this case, Tiffany-Lynn deposed that she wrote Michael many times over the years requesting financial information so she could determine whether increased child support was payable. He agreed that she did.
[52] On October 9, 2013, however, she also told him that she had consulted a lawyer and was intending to take him to court (“filing the paperwork”) to increase child support to the full Guideline amount. No such claim was filed at that time. Of course, she did not know his income because he had not been providing her with that information.
[53] In her ISO forms, she provided four explanations, all having the same theme, for why she had delayed in seeking the increase in child support:
a. because she was residing in another province, she was “left feeling that there was nothing I can do unless I was back in court in Ontario”;
b. she believed that, because the parties were residing in different provinces, she would not be able to advance a claim because she did not have access to Michael’s financial information;
c. “living in another province made it a challenge to change things …”; and
d. “I live in Alberta since July 2010 (sic) and he’s in Ontario so I didn’t think I was able to get any backpay or adjust my child support because I was unable to get any of his financials.”
[54] She did not explain how her “feeling”, belief or thought that living in different provinces made a difference about whether she could seek to vary child support, given that she had allegedly spoken with a lawyer in 2013 and was intending to bring a proceeding to increase child support. She lived in Alberta at that time.
[55] As a result, I find that, on her own evidence, Tiffany-Lynn was aware that she could have commenced a proceeding to change child support as early as 2013. She did not do so, in part because she had no information to assist her to establish that Michael’s income had, in fact, increased since 2009.
[56] Consequently, I find that the responsibility for Tiffany-Lynn’s delay in bringing this proceeding is shared between the parties. That, however, is only one of the factors that I must consider, per D.B.S.
Conduct of the Payor Parent
[57] Included amongst the examples of “blameworthy conduct” on the part of a payor parent “that a court should not hesitate to take into account” is a payor parent hiding his or her income increases from the recipient parent “in the hopes of avoiding larger child support payments.” (D.B.S., at para. 106)
[58] The evidence is clear that, despite Tiffany-Lynn regularly requesting updated financial/income information from Michael, he did not provide it.
[59] Michael claims in his responding affidavit that he was not obliged to disclose his income by any term in Justice Edward’s order. He is correct in that. However, the Supreme Court nullified Michael’s response by its later decisions in Michel v. Graydon, 2020 SCC 24, [2019] S.C.J. No. 102 and Colucci v. Colucci, 2021 SCC 24, [2021] S.C.J. No. 24.
[60] In Michel v. Graydon, the Supreme Court wrote that the payor’s “failure to accurately disclose his income at the time of the March 29, 2001 order, and failure to disclose material changes in his income for the 11 years that followed, constituted blameworthy conduct, which justifies an order for retroactive child support.” (para. 34)
[61] In Colucci v. Colucci, the Supreme Court wrote that “frank disclosure of income information by the payor lies at the foundation of the child support regime” and that “courts have increasingly recognized that the payor's duty to disclose income information is a corollary of the legal obligation to pay support commensurate with income.” (paras. 50 and 52)
[62] Furthermore, as the Supreme Court noted, at para. 53 of Colucci, “[i]n Ontario, the legislature has echoed this trend by amending the guidelines to include a requirement that payors disclose income information annually without the requirement of a request from the recipient (Child Support Guidelines, O. Reg. 391/97, s. 24.1(1)).” This is different than the requirement of the Federal Child Support Guidelines, SOR/97-175, which would apply were the child support to have been ordered under the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), which was not the case here.
[63] In my view, these holdings by the Supreme Court and the express requirement of income disclosure set out in the Ontario Child Support Guidelines collectively answer Michael’s claim that he was not required by Justice Edward’s order to disclose his income annually. While he is correct that such an obligation was not imposed by the order, he was required to do so as a matter of both statute and common law.
[64] I therefore find that Michael has engaged in “blameworthy conduct”, as that term was initially defined in D.B.S., in light of the Supreme Court’s comments expanding the term in Michel v. Graydon and its comments about the significance of income disclosure in Colucci.
Circumstances of the Child
[65] At para. 110 of D.B.S., the Supreme Court wrote that, while “[a] retroactive award is a poor substitute for an obligation that was unfulfilled at an earlier time”, “courts should consider the present circumstances of the child -- as well as the past circumstances of the child -- in deciding whether such an award is justified.”
[66] I was provided with no evidence about the effect on the parties’ child resulting from the underpayment of child support.
[67] I do note that Tiffany-Lynn deposed that she was seeking Guideline child support “… to help with her post-secondary school when the time comes.” That, however, is a statement about prospective needs rather than past deprivations.
[68] Consequently, I can find no basis for applying this factor in my analysis of whether I should award retroactive child support.
Hardship Occasioned by a Retroactive Award
[69] The Supreme Court noted in D.B.S. that the hardship about which it was writing was broader than the ”undue hardship” allowed for under the Child Support Guidelines.
[70] This is a factor that needs to be considered in relation to the support payor. In D.B.S., the Supreme Court specifically used, as a potential example of a case where a retroactive award might cause a support payor hardship, a situation where the support payor has a new family.
[71] I note that Michael has not claimed that having to pay retroactive child support will cause him any financial hardship, although he does note that he has remarried, is supporting a stepchild from his second marriage and is indebted to the Canada Revenue Agency. He provides no further information with respect to his support for his stepchild. I also note that the child is his wife’s, whereas K. is his daughter. Surely, his obligation to her exceeds any that might exist towards a stepchild, whose mother should look first to the child’s birth father for support, and the CRA. However, any consideration about hardship needs to be applied after assessing his support obligation.
Finding on Retroactivity
[72] Having regard to all of the factors set out in D.B.S., I find that it is appropriate to make an award of retroactive child support in favour of Tiffany-Lynn. Despite the fact that she delayed in bringing this proceeding, she has explained her reasons. While they are not overwhelmingly strong in her favour, one factor is the fact that she made several efforts to obtain income disclosure from Michael and was met with silence. In that circumstance, on what basis would she have brought her Motion to Change?
[73] While she had no more income information from Michael when she commenced this proceeding than she did in 2013, she did have some evidence that his income had increased. He had agreed to increase his child support payment for K. by $200.00 per month. That can only be explained by a tacit acknowledgement that his income had increased over what it had been in 2009.
[74] Michael has explained the reason for his failure to have produced his income information – the order did not require it. I have rejected that explanation. The Ontario Child Support Guidelines required that he give it. The Supreme Court has declared that he had a positive obligation to give it, as part of his duty to K., to ensure that she was provided with the support to which she was entitled. He is presumed to know the law. He failed to properly support his child, and financially benefitted from that failure.
From what date is Retroactive Child Support Payable?
[75] The question now turns to the date from which I should award retroactive child support.
[76] In D.B.S., the Supreme Court adopted “the date of effective notice as a general rule” about the date from which retroactive child support should be awarded. (para. 119)
[77] The court described “effective notice” as “any indication by the recipient parent that … the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling.” (D.B.S., at para. 121)
[78] In a case where the date is that of “effective notice,” the Supreme Court also noted that there is a corollary obligation on the support recipient to move discussions forward or “contemplate” legal action. Failing to do so can cause a support payor to assume that the support recipient is not intending to press the issue further. As a result, the Supreme Court held that “it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent.” (D.B.S., at para. 123)
[79] In this case, Michael was served with Tiffany-Lynn’s claim on August 4, 2020. That is the date on which he received formal notice of her claim, which began a year before, on September 27, 2019.
[80] According to D.B.S., the “general rule” would, therefore, limit Michael’s liability for retroactive child support to three years before 2020, or 2017.
[81] However, the Supreme Court also held at paras. 124 and 125 of D.B.S. that:
124 The date when increased support should have been paid, however, will sometimes be a more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child's support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing a material change in circumstances -- including an increase in income that one would expect to alter the amount of child support payable -- is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. A payor parent cannot use his/her informational advantage to justify his/her deficient child support payments.
125 … in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.
[82] Since I have found that Michael engaged in blameworthy conduct, I conclude that “the presumptive date of retroactivity” in this case moves “back to the time when circumstances changed materially.” That is, back to the first date when, according to D.B.S., there was “an increase in [Michael’s] income that would alter the amount payable by” him.
[83] In my view, this analysis requires that I examine Michael’s yearly income increases between 2009 and the present to determine when, if at all, any increase “would alter the amount payable by” him.
Michael’s Income Information
[84] According to the June 3, 2009 order of Justice Edward, Michael’s income for the purposes of child support was “approximately $51,000.00.” For the purposes of this analysis, I will set it at $51,000.00.
[85] I find that this would have been his 2008 income since, in June 2009, the last full year for which Michael’s income would have been known was 2008. Support for this finding is also found in the fact that, in 2010, Tiffany-Lynn was requesting copies of Michael’s 2009 income tax information in order to determine his support obligation.
[86] The income tax returns filed by Michael in compliance with the October 14, 2021 order of Justice Korpan disclose that he had the following annual incomes in each of the years since 2008, beginning with 2009:
| 2009 | 2010 | 2011 | 2012 | 2013 | 2014 |
|---|---|---|---|---|---|
| $56,963.00 | $70,206.00[^1] | $81,701.00 | $96,761.00 | $105,453.00 | $112,617.00 |
| 2015 | 2016 | 2017 | 2018 | 2019 | 2020 |
|---|---|---|---|---|---|
| $108,837.00 | $130,366.00 | $117,273.00[^2] | $118,825.00[^3] | $114,000.00[^4] | $159,985.00 |
[87] As noted in the footnotes, in 2010 and 2019, Michael’s income is said to have included funds withdrawn from an RRSP. I have a discretion as to whether the funds should be included in Michael’s income for support purposes, the test being whether the inclusion of the RRSP funds "would not be the fairest determination of” Michael’s income for support purposes. (Ludmer v. Ludmer, 2014 ONCA 827, [2014] O.J. No. 5565 (C.A.).
[88] The amount included in 2010 was merely $795.00. Because the amount is so small and does not result in a substantial increase in child support payable per month for that year ($5.72), I am including the RRSP withdrawal in Michael’s income for 2010.
[89] Michael provided me with no income tax documents, or any income information, for 2017 and 2018, despite him having been ordered by Justice Korpan to provide it. Similarly, I was provided with no income tax information for 2019, although Michael deposed to it. His failure to have provided me with his income tax information for 2017, 2018 and 2019 causes me to believe that he is purposely hiding a higher income for each year, given his much higher income for 2020, which was supported by income tax information.
[90] This matter, however, has been in the system for over two years. To delay it further, while I await information that may not be produced (Michael having already failed to fully comply with the order of Justice Korpan), would be a disservice to both Tiffany-Lynn and to K.
[91] Including Michael’s RRSP income in 2019 results in an annual income, based on his unsupported evidence, which closely approximates the averaged incomes I have determined for 2017 and 2018. Furthermore, he does not explain why his income in 2019, without including the RRSP, would only have been $99,000.00, an amount of income that he had not earned since 2012, and which was overshadowed by his income in 2020.
[92] As a result, I conclude, based on the evidence that he has provided, that including Michael’s alleged RRSP withdrawal in his 2019 income provides the fairest determination of his income for 2019.
[93] In his affidavit, Michael also claimed that, for the years 2011 through 2017, he used his own vehicle to earn his income. His income tax returns for those years show deductions for employment expenses in the amounts noted by Michael in his affidavit. However, Michael claims that the expenses of operating his vehicle “would have been reported as income on Line 150” of his income tax return.
[94] I disagree. An employee who uses their own vehicle for employment can either be reimbursed by their employer in a reasonable amount, usually calculated per kilometre driven for work purposes, which is not taxable, or the employee may deduct from income that percentage of the amounts they have expended in operating their motor vehicle for work purposes.
[95] Michael’s 2011 income tax return, for example, a year in which he deducted $5,503.00 for employment expenses which included “supplies” and “telecommunication expenses” as well as auto expenses, shows that he was reimbursed for a percentage of his expenses incurred in operating his motor vehicle by his employer. That amount, by his own tax return, was noted as being “not included in income.” To the extent that the reimbursements fell short of fully reimbursing him for the use of his automobile for employment purposes, the balance was allowed as a deduction from his income.
[96] As a result, I find that none of the amounts claimed by Michael as deductions for employment expenses between 2011 and 2017 were included in his income, contrary to his claim otherwise.
[97] Consequently, I find that Michael’s income for child support purposes are the amounts that I have set out in paragraph 86 hereof.
Was there a Material Change in Michael’s Circumstances and, if so, when?
[98] It is clear that, at the time of Justice Edward’s order, Michael was already earning more than was estimated by the parties. At that time, support was calculated on the previous year’s income. Now, however, I can determine child support with the benefit of hindsight for each year.
[99] However, I will not be adjusting Michael’s child support obligation for 2009. Since the increase in his income from the estimated amount of $51,000.00 to the actual amount of $56,963.00 for that year would only result in an increase of $214.56 in child support for six months, I intend to leave Justice Edward’s order in effect for, at least, the year it was made.
[100] Consequently, I find that Michael’s obligation to pay increased child support arose as of January 1, 2010, given his blameworthy conduct in failing to disclose to Tiffany-Lynn his obvious and substantial increases in his income over the succeeding years.
Basis of Calculating Child Support
[101] According to both D.B.S. and the Child Support Guidelines, the amount of child support that ought to have been paid over the years by Michael is to be based on the Guideline figures.
Other Factors to Consider
[102] In determining Michael’s support obligation beginning in 2010, I must also factor in three other matters.
The Cessation of R.’s Entitlement to Child Support
[103] As noted, R. was not Michael’s child, but he “stood in the place of a parent” to him and was ordered to pay child support for him.
[104] R. was born on March 25, 1997. He turned 18 on March 25, 2015. According to Michael’s evidence, his obligation to support R. ended at that date.
[105] Tiffany-Lynn makes no reference to R. in her materials, and her communications with Michael all focused on obtaining Michael’s income information because of his obligation to support K. Tiffany-Lynn has provided no information about R. in her application.
[106] Accordingly, on the evidence available to me, I find that Michael’s obligation to support R. ended on R.’s 18th birthday. (Family Law Act, s. 31(1)(a))
[107] Michael did, however, continue to pay child support of $400.00 per month to Tiffany-Lynn after R.’s 18th birthday. Michael is entitled to credit for any overpayment that might have occurred from paying child support for two children instead of one after March 25, 2015, but the calculation of what he ought to have paid for one child will be based not on his income in 2009 but on his income in each year after 2015, as I have found it to be in this case.
Undue Hardship Reduction
[108] Justice Edward ordered that child support payable by Michael be reduced from the Guideline amount by 48 percent because he was paying child support for his two children from a previous relationship.
[109] Neither party made any reference to whether this factor should continue to apply once I found there to be a material change in Michael’s circumstances due to his increased income.
[110] Tiffany-Lynn has alleged that the reduction in child support was agreed to because Michael agreed to take on other, undefined payment responsibilities. The evidence, and the order, clearly do not support her.
[111] I have decided that, because the parties agreed that Michael’s support obligation for K. and R. was to be reduced because of his obligation to pay child support for his other two children, C. and Y., that reduction will be applied for so long as Michael supported those children. According to his evidence, he ceased paying support for them on May 4, 2017, when C. was 21 and Y. 19. I was provided with no evidence about why he supported them beyond age 18.
[112] After May 4, 2017, I will not be applying the hardship reduction factor when determining Michael’s child support obligation for K.
Increase of $200.00/month in Amount Paid as of September 2019
[113] Michael shall receive credit for the increased child support amounts that he paid to Tiffany Lynn as of September 1, 2019.
Calculation of Child Support owed Since 2010
[114] Having regard to all of the foregoing factors, I find that Michael owes Tiffany-Lynn child support for each of the years since 2009 in the following amounts, shown per year:
| Year | Amount Payable/Mo. | Amount Paid/Mo. | Difference/Yr. |
|---|---|---|---|
| 2010 | $543.40 | $400.00 | $1,720.80 |
| 2011 | $613.60 | $400.00 | $2,563.20 |
| 2012 | $715.52 | $400.00 | $3,786.24 |
| 2013 | $771.16 | $400.00 | $4,453.92 |
| 2014 | $816.40 | $400.00 | $4,996.80 |
| 2015 | $792.48/$492.96[^5] | $400.00 | $2,292.96 |
| 2016 | $580.84 | $400.00 | $2,170.08 |
| 2017 | $526.76/$1,013.00[^6]/$1,044.00[^7] | $400.00 | $4,955.80 |
| 2018 | $1,044.00 | $400.00 | $7,728.00 |
| 2019 | $1,020.00 | $400.00/$600.00[^8] | $6,640.00 |
| 2020 | $1,371.00 | $600.00 | $9,252.00 |
| Total: | $50,500.40 |
[115] Accordingly, I find that, at December 31, 2020, Michael had underpaid child support since January 1, 2010 by $50,500.40. Had I not continued to apply the hardship reduction factor of 48 percent imposed by Justice Edward, the amount would have been even greater.
Michael’s Other Defences
[116] Michael raised other defences, including that Tiffany-Lynn had not sent K. to Ontario as often as she had agreed, that she had been involved in a relationship for some years with her half brother and that she recently married.
[117] None of these are relevant to his obligation to pay child support in the proper amount based on his income.
Will the Retroactive Award Cause Michael Hardship?
[118] Should they find that a retroactive child support award would cause the support payor hardship, “courts should attempt to craft the retroactive award in a way that minimizes hardship.” However, “hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct” (D.B.S., at para. 116), such as “the payor's own unreasonable failure to make proper disclosure.” (Colucci, at para. 108)
[119] It is highly unlikely that Michael can pay the arrears of child support at once. I will, therefore, attempt to minimize any hardship that payments on arrears might cause him, while also being cognisant of the fact that he is in this situation because he engaged in blameworthy conduct by failing to properly support K. over the years.
Ongoing Child Support After 2020
[120] Michael did not provide any information about his income in 2021. However, he did provide evidence that his income in 2020 was $159,985.00, which generated a child support payment of $1,371.00 per month.
[121] Based on that evidence, I will be ordering Michael to pay child support for K. in the amount of $1,371.00 per month effective January 1, 2021, based on his 2020 income.
Tiffany-Lynn’s Other Claims
[122] In her Support Variation Application [ISO Form A.2], Tiffany-Lynn asks only for child support in accordance with the Guidelines, back to 2010 and ongoing, and for an order for continuing income disclosure by Michael.
[123] In her affidavit filed in support of the Application, she adds to her claim by asserting that she has “never gotten any Section 7 expenses” paid by Michael. She continues by referring to help with [K.’s] post secondary school “when the time comes.”
[124] In yet another form filed in support of the claim [ISO Form C], she adds a further claim for Michael to “obtain or maintain medical insurance coverage” for K., and that he also “obtain or maintain dental insurance coverage” for her. She deposed that Michael had not “help[ed] with any section 7 expenses or any extracurricular activities, even though he was supposed to pay up to $500.00 per year.”
[125] She provided no evidence of having submitted any claims to Michael for reimbursement of s. 7 expenses.
[126] In his affidavit sworn September 3, 2020, filed with his Answer [ISO Form N], Michael deposed that Tiffany-Lynn had only submitted some vision care and dental receipts over the years, which he submitted to his insurer. He also deposed that he has paid the premiums to keep K. insured. He provided a “Claims History Summary,” which clearly showed that he has submitted vision and dental claims on behalf of K.
[127] He further deposed that, other than the vision and dental receipts, he “did not receive a copy of any other section 7 receipts, including receipts for any winter or summer sports activities that support the Applicant’s claim.”
[128] The Order of Justice Edward is clear with respect to the payments to a maximum of $500.00 per year. They are to be made in relation to “the cost of registration in winter and summer sport activities for K.” No other mention is made of s. 7 of the Child Support Guidelines in the order.
[129] The order does, however, provide that Michael was to maintain K. as a named beneficiary under any insurance program through his place of employment. He appears to have done that.
[130] As a result, I conclude that the Applicant has not proven her claims in relation to the need for an order relating to maintenance of medical or dental insurance or s. 7 expense contributions, and those claims will be dismissed.
[131] As for K.’s post-secondary education costs, the order provides that there is a right for K. “to seek support and contribution to the cost of post-secondary education after age 19”, or her mother’s right to do so on her behalf.
[132] I have no information about K.’s post-secondary education plans or expenses. It is not clear if she is attending post-secondary education. Additionally, she will not be 19 until April 19, 2022 so, by the terms of Justice Edward’s order, the request for a contribution by Michael is premature.
Order
[133] Based on the foregoing, and for the reasons herein, I make the following order[^9]:
The Respondent, Michael Warren Bee, is indebted to the Applicant, Tiffany-Lynn Bee, for unpaid arrears of child support for the period between January 1, 2010 and December 31, 2020 in the amount of $50,500.40.
Commencing January 1, 2021, and on the first day of each month thereafter, the Respondent, Michael Warren Bee, shall pay child support to the Applicant, Tiffany-Lynn Bee for the benefit of the child, K.B., born April 19, 2003, in the amount of $1,371.00 per month until the child, K.B., is no longer entitled to child support.[^10]
Commencing March 1, 2022, and on the first day of each month thereafter, the Respondent, Michael Warren Bee, shall pay the arrears set out in paragraph 1, together with arrears accumulated in 2021, through the Family Responsibility Office at the rate of $700.00 per month. Once child support is no longer payable for K., the amount paid by Michael to reduce arrears shall increase to $1,000.00 per month until the arrears are paid in full.
The Respondent, Michael Warren Bee, shall provide the Applicant, Tiffany Lynn Bee, annually, no later than May 15 each year, with a copy of his income tax return, as filed, for that year, and, once received, a copy of his Notice of Assessment.
The Applicant, Tiffany-Lynn Bee, shall immediately notify both the Respondent, Michael Warren Bee, and the Director of the Family Responsibility Office when the child K.B. is no longer entitled to receive child support.
There shall be no order as to costs.
“Justice T. Price”
Justice T. Price
Date: February 9, 2022
[^1]: This includes $795.00 from an RRSP, for which no information was otherwise provided. [^2]: No income information was provided for 2017 so, in light of prior years’ income fluctuations, I have averaged the incomes for the years 2014, 2015 and 2016 to arrive at this amount. (CSG, s.17) [^3]: No income information was provided for 2018 so, in light of prior years’ income fluctuations, I have averaged the incomes for the years 2015, 2016 and 2017 to arrive at this amount. (CSG, s.17) [^4]: This is said to include $15,000.00 withdrawn from an RRSP which was claimed to have been used to pay “debts and expenses”, with no other information being provided. [^5]: Michael was obliged to pay support for only one child once R. turned 18 on March 25, 2015. [^6]: Michael’s obligation to support his two children by a prior relationship ended on May 4, 2017, so the hardship reduction ended at that time. [^7]: The CSG Table amounts payable were adjusted as of November 22, 2017. [^8]: By agreement of the parties, Michael began to pay child support of $600.00 per month as of September 1, 2019. [^9]: The Director of the Family Responsibility Office is asked to adjust the records that the Family Responsibility Office maintains in respect of this matter to reflect the provisions of paragraphs 1, 2 and 3 of the order. [^10]: The original order of Justice Edward does not align with the Family Law Act on the issue of how long support should be paid for K. I was not asked to address that issue, and neither party made submissions about it, so I leave the duration of support as set out in the original order as issued by the Ontario Court of Justice.