Court File and Parties

COURT FILE NO.: FC-15-1680-1 DATE: 2023/02/22 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Cesar Quinteros, Applicant – and – Sandra Lorena Paez Diaz, Respondent

Counsel: Julie Gravelle, for the Applicant Respondent, Self-Represented

HEARD: January 31, 2023

REASONS FOR DECISION ON UNCONTESTED TRIAL (CHILD SUPPORT)

SOMJI J

OVERVIEW

[1] This decision addresses the Applicant father’s request to change child support on the basis of a material change in circumstances. The mother was served the materials in relation to the father’s motion and failed to attend both the case conference and the trial date.

[2] The issues to be decided are: one, have the grounds been met for an uncontested and trial; and two, should the order for child support be amended?

Issue 1: Have the grounds for an uncontested trial been established?

[3] Rule 10(1) of the Family Law Rules, O. Reg. 114/99 (“FLR”), provides for 30 days in which a Respondent may serve and file an Answer, failing which “[t]he consequences set out in paragraphs 1 to 4 of subrule 1 (8.4) apply” pursuant to r. 10(5). One of those consequences is the option to proceed to an uncontested trial of the case.

[4] An “uncontested trial” is defined at r. 2(1) as “a trial at which only the party making the claim provides evidence and submissions.”

[5] The applicant father brought a motion to change dated May 25, 2022 to adjust set-off child support from 2018 forward based on the mother’s actual income. The mother was served on July 13, 2022. She attended at the First Appearance date on August 10, 2022 and was granted an extension on consent to August 26, 2022 to file her responding materials. A Case Conference date was set for October 20, 2022. On the date of the Case Conference, the mother had not filed any responding materials and failed to appear. Justice Minnema noted the mother in default and set the matter down for an uncontested trial.

[6] While not obliged to do so, on January 3, 2023, counsel for the father served the mother the materials for the uncontested trial and notified her of the court date. The mother failed to attend the uncontested trial.

[7] I find the grounds for an uncontested trial have been established.

Issue 2: Should the order for child support be amended?

[8] Affidavit evidence may be relied on at an uncontested trial unless the court directs that oral evidence be given: rule 23(22) FLR. In this case, I have relied on the father’s affidavit for an uncontested trial dated January 6, 2022.

[9] The parties commenced cohabitation in 2010 and separated on February 1, 2012. They have two children M.Q. aged 12, and S.Q. aged 11 (“children”). Following separation, the parties went to mediation and resolved all parenting issues. On September 6, 2017, Justice Beaudoin issued an order on consent of the parties (“Final Order”). Pursuant to the Final Order, the parties have joint custody of the children and parenting time on a week on week off basis.

[10] According to the father, both parents have been co-parenting without issue, and the children are happy and thriving. While the parties do not communicate well in regards to money, the father reports that the parties do respect each other as co-parents and always do their best to put the children first. The father does not wish to amend any aspect of the parenting arrangement except the child support payable given the changes in income since the Final Order.

[11] In 2017, when the Final Order was issued, the mother was receiving social assistance. Her 2017 Notice of Assessment indicate she earned $13,004 that year although she had estimated less than $12,000. That same year, the father was working full-time for Freeman Ltd., an agency that sets up exhibits at corporate events and trade shows. His income in 2017 was $26,200. Consequently, the Guidelines support payable by him for two children was $388.00 per month. While the parents were under a shared parenting regime and the father was only required to pay $300/month set-off, he agreed to pay the full amount of child support recognizing the mother and children were in need of support. This is set out in paragraph 13 of the Final Order.

[12] The arrangement to pay full support instead of set-off despite shared parenting was intended to apply until the mother obtained employment. Paragraph 15 of the Final Order stipulates that the mother is to advise the father when she is no longer in receipt of social assistance. Paragraph 14 of the Final Order requires both parties to exchange their income tax returns and notices of assessment annually by June 1st and for adjustments of child support and s. 7 expenses to be made by July 1st.

[13] The father disclosed his Notices of Assessment for 2018 and 2019. He earned $27,945 in 2018 and $26,900 in 2019. His income remained largely the same. He did not receive any financial disclosure from the mother nor did she inform him that she had returned to work. Consequently, he continued paying the full $388 as per the Final Order and enforced through Family Responsibility Office (“FRO”). In 2019, he requested disclosure from the mother but she did not respond.

[14] In early 2020, the father was laid-off from his job because the cancellation of all exhibitions, corporate events and trade shows due to COVID. During this time, he collected the CERB and unemployment insurance. Given the child support amount stayed the same, he started to accumulate arrears. By the end of 2020, FRO garnished whatever little money he had in his account. The father tried to discuss the matter with the mother, but she was non-communicative.

[15] In 2021, the father pressed the mother for financial disclosure but she was not forthcoming. By 2022, he became frustrated and told her that he had reached out to a lawyer. The mother finally provided her Notices of Assessment in May 2022 for the years 2017 to 2020. The Notices indicated that she became employed in 2016 with Dr. S. Abbud Medicine Professional Corporation and earned an income of $16,516. By 2020, the mother was earning more than the father at $29,714 and should have been paying set-off support to him. Instead, the father has continued to have $388/month child support garnished by FRO. His arrears per the most recent statement from FRO in November 2022 were set at $7,100.80.

[16] On May 25, 2022, the father filed a Notice of Motion to change the Final Order with respect to child support payable. The mother was served the motional material on July 13, 2022.

[17] In R v Colucci, 2021 SCC 24, the Supreme Court of Canada revisited the legal framework for determination of applications to increase or decrease child support retroactively. The court recognized that decreased income is an all too common and unfortunate reality for many families: Colucci at para 57. The Court went on to state that any framework developed to accommodate retroactive variations of child support in response to a decrease in a payor’s income, in this case the father, must deal fairly with a wide range of factual situations including loss of employment: Colucci at para 57.

[18] In cases where a payor seeks a retroactive variation in child support, they must establish how their income fell so that the court can ascertain whether the change was significant and long lasting, and not one of choice: Colucci at para 63. I find that the father has demonstrated that his change of income was not out of choice, but the result of exceptional circumstances brought upon by the COVID-19 pandemic.

[19] Furthermore, not only did the father’s income decrease, but the mother failed to provide him with financial disclosure of the increases in her income as required by the Final Order and Child Support Guidelines. The mother’s disclosure would have changed the set-off amount of child support payable by the father and prevented the father’s accumulation of arrears. As stated repeatedly in Colucci, both with respect to requests for retroactive increases and decreases in child support, full, fair, and timely disclosure is the key to an effective child support system and one that supports parents being able to resolve issues themselves: Colucci at paras 51, 62 and 70. The obligation for financial disclosure is on both parents.

[20] To request a retroactive decrease of child support, the presumptive date of retroactivity is the date of effective notice given by the payor. What qualifies as effective notice is more than simply broaching the subject of a reduction of support with the recipient. The payor must communicate with the recipient on an ongoing basis and move to reasonably change a pre-existing arrangement. This allows the recipient parent to start negotiations and adjust expectations, lifestyle, and expenses around the children: Colucci at para 88.

[21] In this case, the father provided formal notice seeking a retroactive decrease in May 2022 by way of a Motion to Change. However, I find that the father gave effective notice requesting a decrease of child support on/around December 1, 2020. The pandemic was upon us in March 2020. The father lost his job that year. He states that by the end of that year, he tried to discuss the matter with the mother but she was not communicative.

[22] While the period of retroactivity is generally not supposed to exceed three years before the date of formal notice (May 2022) and would in this case result in a retroactive limit to May 2019, the court has the discretion to extend the period of retroactivity if fairness requires it: Colucci at para 96. In this case, the mother failed to provide financial disclosure as required by the Final Order placing the father at a significant informational disadvantage in determining what set-off support, if any, was payable. The mother effectively took advantage of the father’s willingness to pay full child support because she was initially on social assistance. Furthermore, the mother has still not provided her financial disclosure for 2021 or 2022.

[23] Finally, I note that paragraph 14 of the Final Order states that if there is a dispute over child support, a formal review shall occur through a settlement conference with Legal Aid Ontario. I do not find this clause precludes the father’s application. The clause is conditional on the parties annually exchanging financial disclosure which the mother failed to do. Furthermore, the mother failed to attend a case conference scheduled before this Court after the first appearance following the father’s motion to change, failed to file an Answer even when given an extension to file, and failed to attend the uncontested trial the date of which she was informed.

[24] For all these reasons, I find that fairness militates that the period of retroactivity for decreasing the father’s child support payable is January 1, 2018 when the mother was no longer on social assistance, had obtained employment and increased her income, and failed to notify the father of the change in her financial status. The mother has not responded on this motion to suggest that reimbursement of any overpayments of child support would cause her any hardship: Colucci at para 105.

[25] In this case, based on the parties annual income tax returns for 2018 to 2022, the child support payable in dollars should be as follows:

Year Father’s income $ Child support payable by father $ Mother’s income $ Child support payable by mother Set-off amount for child support $ Child support actually paid by the father per month $ Adjustment to father’s arrears due to overpayment $ 2018 27,945 427 16, 516 218 209 payable by father 388 2,148 for 12 months 2019 26,900 408 13,395 110 298 payable by the father 388 1,080 for 12 months 2020 27,345 416 29,714 455 39/month payable by the mother 388 4,656 for 12 months 2021 29,845 457 Imputed to 29,714 455 2/month payable by the mother 388 4,656 for 12 months Total adjustment for fathers arrears: $12,540 January 1, 2022 to March 1, 2023 15,521 187.19 unknown 388 To be determined

[26] Given the father has overpaid child support for the years 2018 to 2021, there will be an order that the father’s child support be retroactively adjusted to the above-noted amounts and that he be credited by FRO for any overpayment of child support resulting from such adjustments.

[27] There will also be an order for the mother to pay the father child support for 2020 based on their respective incomes and set-off in the amount of $39/month for total of $468 within 30 days of this Order. The Director of FRO will continue to enforce this order and should the mother fail to pay, the amounts can be garnished from her wages by FRO.

[28] The mother has failed to provide her Income Tax Returns or Notices of Assessment for 2021 and 2022 making it difficult to calculate child support for those years. There is no evidence that her employment has changed. Therefore, her 2021 income is imputed to be the same as her 2020 income at $29,714. The father is not presently seeking any retroactive child support as the set-off amount appears to negligible for 2021 given the similarity in their incomes. As discussed below, however, the child support amount may be adjusted upon the mother filing her income tax information with the father and the court.

[29] There will be an order that the mother will provide the father her Income Tax Returns and Notices of Assessment for 2021 and 2022 by June 1, 2023. Upon receipt of those returns, the father is prepared to have counsel calculate the support amount based on the set-off. If the mother fails to provide her returns, the father seeks for the mother’s income to be imputed to $40,000. While I agree that the calculation of the 2022 child support can be addressed by agreement between the parties upon receipt of the mother’s financial disclosure, I cannot agree to a clause imputing the mother’s income to $40,000 in the absence of further evidence.

[30] Counsel for the father will contact trial coordination to set a date for the return of this matter before me some time before July 1, 2023, for one hour, and will notify the mother accordingly. At that time, if the issue 2022 child support is not resolved, the court will determine whether the mother’s income should be imputed to a higher amount. For imputation, counsel for the father should provide the court with as much information as possible about the mother’s employment, the nature of the work, whether part or full time, the address of the employer, and why they believe the income should be imputed to a higher amount.

[31] At that hearing, retroactive adjustments can also be made for child support paid by the father for the period of January 1, 2022, to March 1, 2023. Counsel should provide a new statement of arrears from FRO at that time.

[32] Finally, if it is determined that the mother’s income for 2021 was in fact higher or lower than $29,714, adjustments can also be made for 2021 child support at the next court hearing.

[33] There will be a temporary order issued to adjust for child support. At the next hearing, a new Final Order can be issued consolidating the terms of the 2017 Final Order that are not changed as well as child support payable so that there is one order governing the parties going forward.

Order

There will be a Temporary Order that:

1. Paragraph 13 of the Final Order of Justice Beaudoin dated September 6, 2017 is hereby struck.
2. The father’s child support payable for 2018 is retroactive adjusted to $209/month.
3. The father’s child support payable for 2019 is retroactively adjusted to $298/month.
4. The father’s child support payable for 2020 is retroactively adjusted to $0/month.
5. The mother shall pay the father child support for 2020 on a set-off basis in the amount of $39/month for total of $468 within 30 days of this Order.
6. The father’s child support payable for 2021 is retroactively adjusted to $0/month.
7. The Family Responsibility Office will credit the father for any overpayment of child support for the years 2018 to end of 2021.
8. The Respondent mother shall serve and file her 2021 and 2022 Income Tax Returns and Notices of Assessment to the Applicant father’s counsel by email by May 1, 2023.
9. Child support for 2022 shall be adjusted based upon the set-off method, whereby each party shall pay the table amount for 2 children commensurate with their 2022 income.
10. If the Respondent does not provide the disclosure set out at paragraph (d) above by May 1, 2023, the court may impute a higher income for 2022 at the continuation hearing.
11. Effective March 1, 2023, the father and the mother shall both pay child support for the children, based upon their line 150 incomes, and commensurate with the Guidelines, on a set-off basis as a result of the equally shared parenting regime.
12. The parties shall exchange their annual income tax returns and notices of assessment by June 1st every year.
13. Counsel for the father will set a date to have this matter return before me for 1 hour following receipt of the mother’s financial disclosure but no later than July 1, 2023, to determine the following:
    1. Child support payable for 2022 to March 1, 2023, whether retroactive adjustment of child support payable is required based on the parties incomes, and if the father should be credited for any overpayments of child support for this period.
    2. Whether retroactive adjustments for 2021 child support are required upon receipt of the mother’s 2021 income tax return.
    3. Should the mother fail to provide her income tax return for 2022, what amount should be imputed to her income to determine child support payable for 2022 and going forward.
14. 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.

Costs

[34] The father is the successful party on the motion to change child support. He seeks costs of $1000. Counsel for the father submitted a bill of costs indicating 10.35 hours spent on the motion for tasks such as corresponding with the opposing party, preparing for the motion to change and uncontested trial, attending the first appearance, case conference, and uncontested trial, all of which have been reasonably billed. Counsel charged a rate of $300/hr which I find is commensurate with her 17 years’ experience. The total costs were legal fees of $2700, HST of $351, and disbursements of $147.04.

[35] Costs are the discretion of the judge. Having considered that the father is the successful party, the mother’s conduct in failing to disclose her financial information or attend for court, the complexity of the matter, the reasonableness of the costs request, and the mother’s income and ability to pay, I find that a costs award in the amount of $1000 as requested by the father and which constitutes less than partial indemnity is very fair and reasonable. There will be an order that the mother pay the father costs in the amount of $1000 within 30 days.

[36] 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.

[37] This motion was entirely about child support. The costs award constitutes the father’s 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. There will be additional terms on the Order that:

1. Costs of this Motion are hereby fixed in the amount of $1000 payable by the mother to the father within 30 days of this Order.
2. 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.

[38] Counsel for the father will draft a Temporary Order consistent with my decision and forward it to the SCJ Family Counter and my assistant Tina.Gloyn@Ontario.ca for my review and signature.

Somji J.

Released: February 22, 2023