Court File and Parties

Oshawa Court File No.: FC-08-1237-01 Date: February 13, 2023

Ontario Superior Court of Justice Family Court

Between: Janice Elizabeth Holt, Applicant – and – Gary Michael Read, Respondent

Counsel: C. Morison K. Aitchison

Heard: November 14, 2022

Judgment

L. E. Fryer, J.

[1] The Respondent, Mr. Read, brought a motion for summary judgment on November 14, 2022, seeking to retroactively adjust child support payable pursuant to the order of Scott J. dated October 27, 2008, back to the date of that original order.

[2] Mr. Read did not participate in the original proceedings initiated by Ms. Holt in 2008, and the matter was concluded through a 23C uncontested trial. Scott J. imputed an income to Mr. Read of $150,000 and ordered him to pay Table child support for the two children: Jordyn Elizabeth Read born June 15, 1993, and Kaitlyn May Read born January 26, 1997 of $1,992 per month. He was also ordered to pay a further $400 per month for special and extraordinary expenses.

[3] Mr. Read did not move to set aside Scott J.’s order. Rather, he commenced a Motion to Change Scott J.’s order on November 26, 2019.

[4] The parties consented to an order in this proceeding that child support for each child would be payable until it terminated for Jordyn as of June 30, 2015, and for Kaitlyn as of June 30, 2016.

[5] Mr. Read made few, if any, payments for child support when the children were dependents. He started to make payments in 2016. Even after the agreed upon events of termination are accounted for, he still owes almost $77,000 not including accrued interest.

[6] The remaining issue before me was whether there should be a further retroactive variation.

(a) General Principles on Summary Judgement

[7] Rule 16 of the Family Law Rules outlines the procedure for motions for summary judgment.

[8] The burden of proof is on the party moving for summary judgment. Pursuant to subrule 16(4), the party moving for summary judgment shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[9] Pursuant to subrule 16(4.1) of the Rules, the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

[10] Rule 16(6) provides: “If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.”

[11] Pursuant to r. 16(6.1), in determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[12] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, the Supreme Court of Canada set out a road-map for the determination of summary judgment motions. The Supreme Court refers to r. 20.04 of the Rules of Civil Procedure, which mirrors r. 16 of the Family Law Rules. The Supreme Court held as follows at para. 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[13] Summary judgement will be appropriate when the judge has confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute: Hyrniak, at para. 50.

[14] There will be no genuine issue for trial when the summary judgment process “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”: Hyrniak, at para. 49.

(b) Analysis of Mr. Read’s Motion

[15] As the moving party on this summary judgement motion, Mr. Read bore the burden of providing that there is no genuine issue requiring a trial with respect to the relief being sought. He was obliged to put his best foot forward and the court is entitled to assume that he has proffered all evidence that he might otherwise adduce at a trial: O’Dacre v. Cross, 2019 ONSC 2265, at paras. 22-27.

[16] Mr. Read submitted the following:

a. He did not participate in the previous court proceeding as he was unaware of the date and the Applicant misled the court as to his reasonable income. He provided few other details or particulars in support. b. The income imputed by Scott J. was incorrectly arrived at and he has never earned anything like that sum. He states that he was unemployed in 2008 but typically earned between $30,000 and $50,000 per year. He commenced employment with his current employer, Attersley Tire, in 2013. He does not own any significant assets which, he says, demonstrates that he was earning far less than the amount imputed. c. Although he consented to a later termination date, in fact the children lived with him for periods of time and/or ceased to qualify for support when they each turned 16 as they had withdrawn from parental control. d. Child support should be re-calculated and paid based on his actual income for each year from the date of the original order forward. e. He has not filed income tax returns for 2008-2015 inclusive, but the court should assume that his income would be no greater than his 2016 income of $51,843. f. The arrears attributable to the special and extraordinary expenses should be rescinded as Ms. Holt has not provided proof that she actually incurred those expenses. g. He has suffered from significant financial strain and associated mental distress due to the enforcement of the existing order. No independent medical evidence was produced.

[17] Section 37(2.1) of the Family Law Act, R.S.O. 1990 c. F. 3 requires that, to vary an order for child support, the court must be “satisfied there has been a material change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available.”

[18] The Supreme Court of Canada in Colucci v. Colucci, 2021 SCC 24, 458 DLR (4th) 183, discussed the general principles applicable to retroactive variation claims. Although Colucci was decided under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) these broad principles apply equally to variation claims brought under the Family Law Act: M.A.B. v. M.G.C. 2022 ONSC 7207, at para. 499.

[19] The Supreme Court set out the step-by-step analysis applicable to variation claims brought by a payor at paragraph 113 of Colucci:

(1) The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice. (2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation. (3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings. (4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased). The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct. (5) Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[20] The children ceasing to qualify for child support constitutes a material change, and the parties have agreed to the specific termination dates.

[21] Mr. Read’s primary argument was that the court should adjust child support for the period prior to termination as his income was far lower than imputed to him. Mr. Read opted not to put forward any evidence of his income for 2008-2015 inclusive; he confirmed that he had not even filed income tax returns for those years and had no immediate plans to do so. Rather, he asked the court to impute an income to him for those years equivalent to his 2016 income of $51,843. Mr. Read has not established a material change based on income for those years.

[22] Mr. Read did produce his 2016 Notice of Assessment, and his child support obligation for Kaitlyn continued until June of that year. However, this does not assist Mr. Read. The Supreme Court of Canada held as follows at paragraph 63 of Colucci:

Of course, a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing the imputation was higher than the table amount for their actual income. The payor cannot rely on their own late disclosure as a change in circumstances to ground a variation order (Gray, at paras. 33-34). This would “defeat the purpose of imputing income in the first place” and act as “a disincentive for payors to participate in the initial court process” (Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, at para. 53).

[23] In Trang, Pazaratz J. held at para. 52 that:

A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before.

Or,

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

[24] Mr. Read did not specifically address this issue as his argument throughout was the income should never have been imputed to him at that level. In any event, without having Mr. Read’s income tax returns for the preceding years, the court would not have been able to adequately assess whether there had been a material change in circumstances with respect to Scott J.’s original finding of imputed income.

[25] Mr. Read sought to retroactively vary his contribution to the special and extraordinary expenses. However, the order of Scott J. did not require Ms. Holt to provide proof of special and extraordinary expenses to Mr. Read to substantiate the $400 per month payment. There is no separate ground to vary this aspect of the order absent material change.

[26] Mr. Read also suggested that the court should still consider his evidence that the children were residing with him for periods of time in the context of his claim to retroactively adjust child support based on income. He stated that he consented to pay child support through to the agreed upon date of termination because he did not want Ms. Holt to be exposed to a claim for re-payment from social services. Ms. Holt denies that she was ever at risk of that as she was forthright with social services at the time. In any event, Mr. Read’s evidence regarding the children’s residence during the material time was lacking. He did not produce sworn affidavits from either of the girls, who are now adults, but relied on hearsay evidence. The girls had been asked to confirm by e-mail that they agreed with certain excerpts taken from his earlier Case Conference brief, but Mr. Read did not include the original e-mail sent to Kaitlyn or Jordyn with the attachment, and it is not clear from either of their responses what they reviewed or what statements they were referring to.

[27] Mr. Read did produce a sworn affidavit from Ms. Holt’s son, Kenneth Derrell McGowan, who deposed that he recalls Jordyn living with her boyfriend and Kaitlyn residing with her father, “both at approximately the age of 16”. Ms. Holt submits that Mr. McGowan’s evidence should be viewed with some caution as he has a serious drug problem, and he does not connect the children’s age (stated as approximate only) with when they were attending school.

[28] Mr. Read consented to paying child support for the children through to the agreed upon dates, and the court is not prepared to go behind that consent. Even if this was not the case, I would be unable to find based on the evidence put forward by Mr. Read that there was an earlier material change in circumstances.

[29] Mr. Read was unable to point to a material change in circumstances that occurred after the date of Scott J.’s order, other than the termination of child support for the children on the agreed upon dates.

[30] Mr. Read’s failure to produce income disclosure runs directly contrary to the principles that have long been propounded by courts at all levels, and most recently and emphatically by the Supreme Court in Colucci. The failure to produce disclosure is fatal to Mr. Read’s claim.

[31] It was not directly argued by Mr. Read, but I note that in certain very narrow circumstances and as a last resort, the court can consider rescinding arrears that otherwise properly accrued based on the payor’s income when there is evidence that the payor has no current ability and will not in the future be able to pay even with a flexible payment plan: Colucci, at paras. 136-138.

[32] Mr. Read has had the same job for many years. He is currently earning approximately $51,000. Mr. Read did not adduce any independent evidence that he is suffering from a medical or mental health condition. He no longer has a prospective child support obligation, and this frees him up to re-pay Ms. Holt what she should have received for all those years when the children were dependents. Mr. Read does not meet the test for a recission of arrears.

[33] In summary, there is no genuine issue requiring a trial with respect to Mr. Read’s claim to retroactively vary child support. I am able to reach this conclusion without resorting to the additional fact-finding powers set out in r. 16. Mr. Read’s failure to produce any financial disclosure for 2008-2015 made it impossible for the court to determine if there was a material change in circumstances relative to income. Except for the changes made on consent, Mr. Read’s motion for summary judgment shall be dismissed.

[34] In O’Dacre, at para. 28, Charney J. held as follows:

On a summary judgment motion, a motion judge may grant judgment in favour of the responding party, even in the absence of a cross-motion for such relief: Meridian Credit Union Ltd. v. Baig, 2016 ONCA 150 (Ont. C.A.), at para. 17, citing King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215 (Ont. C.A.), at paras. 14-15, and Kassburg v. Sun Life Assurance Co. of Canada, 2014 ONCA 922 (Ont. C.A.), at paras. 50-52. However, there must be an evidentiary record on which such judgment can be granted for either moving party or respondent: Clearway Construction Inc. v. The City of Toronto, 2018 ONSC 1736 (Ont. S.C.J.), at para. 6.

[35] Mr. Read has not met the burden of establishing that there has been a material change in circumstances in relation to his income since the Scott J. order. To simply dismiss his summary judgment motion and permit his Motion to Change to proceed, would run directly contrary to the principles outlined by the Supreme Court in Hyrniak and r. 2 of the Family Law Rules. The balance of Mr. Read’s Motion to Change shall therefore be dismissed.

[36] Scott J.’s order provides that interest runs on any unpaid amounts at the post-judgment interest rate of 5%. According to Ms. Holt’s calculations, the accrued interest is almost equivalent to the arrears. I considered exercising my discretion under s. 130 of the Courts of Justice Act, R.S.O. 1990, c. 43 to reduce the post-judgment interest rate applicable to the arrears. It is not necessary for the court to first find there has been a material change: Assayag-Shneer v. Shneer, 2023 ONCA 14, at para. 34.

[37] In Crosbie v. Crosbie, 2012 ONCA 516, citing Robert McAlpine Ltd. v. Woodbine Place Inc. (2001), 116 A.C.W.S. (3d) 441, [2001] O.J. No. 3208 (Ont. C.A.), the Court of Appeal confirmed that the statutory post-judgment interest rate should apply unless there are compelling and exceptional reasons to change the interest rate: Crosbie, at para. 10.

[38] Ultimately, I am unable to find that such compelling and exceptional reasons exist having regard to the factors set out in s. 130(2) of the Courts of Justice Act. Although the applicable rate of interest dropped in the quarter immediately following the judgment being issued and remained in the 2-3% range for the ensuing 12 years or so (it has since returned to 5% effective January 1, 2023), other considerations do not favour the exercise of my discretion. Mr. Read made few, if any, payments toward child support for the entire period that the children were dependents. Ms. Holt was forced to seek social assistance. Finally, Mr. Read again failed to produce basic, essential income disclosure and imprudently brought this Motion to Change without it.

[39] I am prepared to permit Mr. Read time to pay the outstanding amounts to minimize the hardship associated with the full amount being deemed due and owing. The amount I have set is similar to the Table amount for two children based on Mr. Read’s current income.

Order

1. On consent, child support shall terminate for the child Jordyn Elizabeth Nicole Read as of June 30, 2015, and for Kaitlyn May Read as of June 30, 2016.
2. The Respondent shall pay the sum of $700 per month toward the arrears of child support and accrued interest until paid in full. Any income tax refunds, HST rebates etc. or similar sums due to him by the government are to be applied to the arrears over and above the monthly payments. If the Respondent fails to make a monthly payment, the full amount shall be immediately due and owing.
3. The Respondent shall within 120 days file his income tax returns for the years 2008-2015 inclusive and provide the Applicant with proof of filing.
4. The balance of the Respondent’s Motion to Change is dismissed.
5. The Applicant shall deliver her submissions with respect to costs not to exceed three pages excluding offers to settle and bill of costs on or before February 28, 2023. The Respondent shall deliver his submissions with respect to costs not to exceed three pages excluding offers to settle and bill of costs on or before March 11, 2023. The Applicant may deliver a brief reply not to exceed two pages on or before March 18, 2023.

Justice L.E. Fryer Released: February 13, 2023