Court File and Parties

COURT FILE NO.: FC-10-2714-1 DATE: 2023/02/27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mary Maclean, Applicant -and- Mathieu Courville, Respondent

COUNSEL: Elliott Braganza, for the Applicant Gonen Snir, for the Respondent

HEARD: November 1, 2022

Reasons for Decision

ENGELKING. J.

[1] This is a Motion to Change (“MTC”) the Final Order of Justice Kershman dated January 20, 2011 brought by the Respondent Father, Mr. Courville, seeking an order varying on-going child support payable commencing July 1, 2022 to $120 per month on an annual income of $18,000, and for his arrears of child support and section 7 expense contributions be fixed at $5000 as of August 1, 2022, to be paid at the rate of $30 per month commencing November 1, 2022 until they are paid in full. In his affidavit sworn on August 15, 2022, however, Mr. Courville requests that the court “eliminate” his child support arrears.

[2] The Applicant Mother, Ms. Maclean seeks an order dismissing Mr. Courville’s motion.

[3] The parties commenced a relationship in 1998, were married in September of 2003 and separated in the fall of 2007. Two children were born of the marriage, Zia in October of 2003, and Sequoya in May of 2006.

[4] Mr. Courville had another child with a new partner on October 8, 2010. Although he refers to having later “lost” his partner and child, Mr. Courville provided no information of having specified financial obligations towards this child.

[5] On January 20, 2011, Justice Kershman granted a Final Order providing that Mr. Courville pay child support for the two children of the marriage in the amount of $335.00 per month on an annual income of $22,000 commencing January 1, 2011. No reference is made in the Final Order to contributions to section 7 expenses.

[6] By his own admission, Mr. Courville chose not to participate in the court proceeding at the time, nor did he provide disclosure of his financial circumstances. He has failed to pay the ordered child support since the order was made and the Family Responsibility Office (‘FRO”) has enforced the order by garnishing Mr. Courville’s pay from time to time.

[7] Mr. Courville has a varied history of employment, or at times unemployment. Although Mr. Courville is highly educated, having obtained a PhD. in Religious Studies in 2007, he struggles from mental health difficulties. He has not been successful in finding employment related to his studies and has as times been in receipt of the Ontario Disability Support Program (“ODSP”), including continuously since 2020. He has also been employed as a security guard and as a line cook in a restaurant, the latter of which he is currently doing on a limited basis. When Mr. Courville is in receipt of income, it is deducted from his ODSP payments. Mr. Courville has lived in Ottawa Community Housing since September of 2020. His Notices of Assessment from 2017 to 2021 are attached at Exhibit “D” of his affidavit sworn on August 11, 2022. They reveal the following in relation to his income over those years:

• 2017 – $18,303
• 2018 – $30,492
• 2019 – $8,304
• 2020 – missing from the exhibit
• 2021 – $18,957

[8] Although Mr. Courville states in his affidavit that he “repeatedly attempted to reason with Mary and with FRO”, he provides no contemporaneous context nor independent documentation demonstrating such efforts. The only document Mr. Courville provides relating to any attempt to address the issue of his child support and child support arrears is an application made to FRO dated March 21, 2018. It is unclear to me if Ms. Maclean was served with this application or had any knowledge of it at all. It also does not appear to be accompanied with financial disclosure. Ironically, this plea of Mr. Courville was made to FRO in the year during which he appears to have had the highest income of all. Additionally, in this same year, when Mr. Courville’s income was $30,000, he did not make any voluntary child support payments.

[9] There is nothing in Mr. Courville’s evidence which demonstrates that he ever provided Ms. Maclean with his Notices of Assessment or financial information prior to bringing his MTC in March of 2021.

[10] Mr. Courville very rarely voluntarily paid his child support. As of January 4, 2019, Mr. Courville had child support arrears of $4,719.47 owing to FRO. It appears that he is seeking to essentially “freeze” his arrears owing to this date. As of June 1, 2022, however, Mr. Courville’s child support arrears with FRO were $13,321.25.

[11] In June of 2022, Mr. Courville began making payments of $150 per month to Ms. Maclean. Whether he has continued to do so to the time of this decision is unknown to the court.

Analysis

[12] The leading case on requests for retroactive reductions to child support is, of course, Colucci v. Colucci, 2021 ONCA 561. Justice Martin set out at paragraph 113 the analysis which applies to a request for a retroactive decrease to child support as follows:

(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.

[13] With respect to the first factor, it is questionable whether Mr. Courville has demonstrated that there has been a material change in his income since the 2011. Except for the year 2019, his income has been similar to that attributed to him in 2011. Indeed, in 2018 it was approximately $8000 higher than was contained in the order. In 2017 and 2021, it was approximately $3000 lower. Whether this is a change material enough to affect table support is questionable. Whether it is one to justify doing so retroactively is even more so.

[14] Even if it is, however, I have no evidence that Mr. Courville provided Ms. Maclean with effective notice of his change in circumstances, particularly by providing her with the requisite financial disclosure such that she could meaningfully assess the situation. Ms. Maclean was served with Mr. Courville’s MTC and supporting materials on May 4, 2021. This is, thus, the date of formal notice. I can find no prior date of effective notice. Pursuant to Colucci, the variation, if any, should commence as of the date of formal notice.

[15] After reviewing the D.B.S. factors referred to by Justice Martin when considering whether to depart from the presumptive date in a request for a retroactive decrease, I decline to exercise my discretion in this regard. First, Mr. Courville has provided no explanation as to his reason for delay in bringing his MTC, let alone a reasonable one. Second, he has failed to pay child support as required by the Final Order of Justice Kershman, this being one of the most significant factors in any assessment of a payor’s conduct. Third, the children’s circumstances have always and continue to require support from their father.

[16] Finally, Mr. Courville submits that having to pay the child support owed by him will cause him undue hardship. This he bases on his mental health status, and the fact that his treating physician supports that he can only work part-time. Ms. Maclean counters that part-time work amounts to 30 hours a week and at $15 per hour, Mr. Courville could be making approximately $23,000 per year, which is more than is attributed to him by Justice Kershman. She also submits that she has carried the entire burden of meeting the needs of the children, including with respect to s. 7 or extraordinary expenses, and that she has incurred debt to do so. Any hardship to Mr. Courville, she submits, must be weighed against hardship experienced by the children. With Ms. Maclean, I agree.

[17] The material change in this matter is not, in my view, Mr. Courville’s reduction in income from $22,000 to approximately $19,000. Rather, although he has always suffered from mental health issues (including prior to the 2011 Final Order), the material change is that his status has deteriorated to a state where he is clearly unable to work fulltime.

[18] I accept Mr. Courville’s evidence, including from his treating physician, that he is incapable of even working 30 hours a week. I am prepared to vary his ongoing support from the date that he gave Ms. Maclean formal notice of his request. However, I find that Mr. Courville has not met his burden, as set out in Colucci, in relation to his request for a retroactive variation of his child support payable prior to May of 2021 such that arrears owning pursuant to the Final Order of Justice Kershman dated January 20, 2011, be reduced or rescinded.

Order

[19] For the above reasons, there shall be a Final Order as follows:

1. Paragraph 4 of the Final Order of Justice Kershman dated January 20, 2011, shall be varied to read: “The Respondent shall pay child support for the two children in the amount of $293.06 per month commencing June 1, 2011, based on an annual income of $18,957, as per the Child Support Guidelines O.Reg. 391/97.
2. The Family Responsibility Office shall make necessary adjustments to the child support arrears owed by the Respondent in accordance with this Order.

Costs

[20] If the parties are unable to reach an agreement as to the liability or quantum for cost of the MTC by March 15, 2023, they may make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.

Engelking J. Date: February 27, 2023