Court File and Parties

COURT FILE NO.: FS-22-0176-00 DATE: 2023-02-27

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Colin William Clayton, Applicant v. Stephanie Ninon Counts, Respondent

HEARD: November 24, 2022

BEFORE: Nieckarz J.

COUNSEL: Self Represented, Applicant Self Represented, Respondent

Endorsement on Motion

Overview:

[1] Mr. Clayton makes this interjurisdictional support variation application of an order made under the Divorce Act.

[2] Mr. Clayton seeks child support from the Respondent, Ms. Counts for the child William Marcus Clayton (July 9, 2005). William was living with Ms. Counts when a prior support order was made requiring Mr. Clayton to pay child support. On September 3rd, 2021, William went to live with Mr. Clayton, and has remained in his care since that time. Given this change in circumstances the child support order requiring Mr. Clayton to pay is no longer being enforced.

[3] Mr. Clayton seeks child support retroactive to the date that William started living with him.

[4] The parties appeared by Zoom for the hearing of this Application.

[5] Neither party disputes that William has lived with Mr. Clayton continuously since September 3rd, 2021, or that he should remain in Mr. Clayton’s care. William is 17 years old and has expressed his wishes clearly.

[6] Ms. Counts agrees to an order for payment of support. She disagrees that the order should be made retroactive to September 3, 2021. She argues that child support should be payable as of the date of effective notice that Mr. Clayton was seeking support. She says this did not happen until September 2022.

[7] Mr. Clayton acknowledges that he did not make a written or oral demand for support. He commenced this application on November 18, 2021, but because of administrative delays associated with the interjurisdictional support variation procedure, the application did not come to Ms. Counts’ attention until September 2022.

[8] For the following reasons, Ms. Counts shall pay child support to Mr. Clayton retroactive to December 1, 2021, being the first month following the commencement of this application.

Background:

[9] There are numerous courts orders pertaining to the parties. The most relevant are:

a) August 9, 2010, Divorce Judgment and Corollary Relief Order of Justice Greckol of the Court of Queen’s Bench Alberta. Along with a divorce, that order provided for joint custody of the children of the marriage, primary care to Mr. Clayton, “liberal and generous access” to Ms. Counts, and that “There shall be a reservation of child support”.

b) The Divorce Judgment was varied on September 3, 2013, by the Order of Gill, J., of the Court of Queen’s Bench Alberta. The variation provided for shared custody of the two children of the marriage with an alternating weekly schedule. No child support was ordered.

c) Child support was first ordered payable was pursuant to a Consent Variation Order of Wakeling J., on October 1, 2013. Mr. Clayton was ordered to pay child support and s. 7 expenses to Ms. Counts.

d) There were various other variation orders with respect to parenting terms and child support. Child support was also recalculated annually through the Alberta Child Support Recalculation Program. The most recent August 26, 2021, recalculation decision changed the proportionate sharing of s. 7 special expenses based on 2020 income for both parties, and increased the table support payable by Mr. Clayton to $1,097 per month for two children and $673.00 for one child.

[10] The most recent court order (2019) and recalculation decision (2021) referenced two children. There is an older child, Zachary. As of the date of arguing this application, Zachary would have been 20 years old. As neither party mentioned Zachary at all, or any type of split custody support arrangement, I have assumed that Zachary no longer qualifies as a child of the marriage for the purpose of child support.

[11] At the time William moved from his mother’s care to his father’s care, Ms. Counts had been living in Edmonton, Alberta. Mr. Clayton lived on Vancouver Island, British Columbia. Ms. Counts now lives in Thunder Bay, Ontario.

[12] Attached to Mr. Counts’ “Form C – Child Support Claim” is a copy of an email from Ms. Counts dated September 9, 2021. That email sets out Ms. Counts’ position with respect to William’s desire to live with his father. Ms. Counts suggests that the parties maintain joint decision-making, day-to-day care shall be with Mr. Clayton, and Ms. Counts shall have “reasonable and generous access”.

[13] With respect to financial issues, Ms. Counts states in the email:

“Further, I no longer have any benefits for William because he no longer lives with me and is no longer in Alberta. I have advised MEP and the CRA that he has moved so I will no longer be receiving any government benefits for him. You are no longer required to pay any child support either.

Let me know if I have missed anything.”

[14] There is no evidence of any response from Mr. Clayton.

ANALYSIS:

As of what date should support be payable? (Retroactivity)

[15] Under the Divorce Act, courts have the power to order retroactive child support in appropriate circumstances: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 SCR 231, at paras. 71 and 81.

[16] Parents have an obligation to support their children in a manner commensurate with their income. This obligation exists independently of any statute or court order: D.B.S., at paras. 48 and 54.

[17] Whether or not to award retroactive support is discretionary. In determining whether a retroactive award should be made, each case should be decided based on its own particular facts: D.B.S., at paras. 94 and 99.

[18] The following factors should be considered:

a) The reason for the recipient parent’s delay in seeking child support;

b) The conduct of the payor parents;

c) The past and present circumstances of the child, including the child’s needs at the time the support should have been paid; and

d) Whether the retroactive award will cause hardship.

D.B.S., at para. 95, 100 – 117.

[19] Keeping in mind the foregoing, I find:

a) This was not a situation in which there was an undue delay on the part of the applicant. He commenced his support application in November 2021. Unfortunately given the delays associated with the interjurisdictional support program, the application did not come to the attention of the respondent until September 2022. This was not Mr. Clayton’s doing. In D.B.S., courts were directed to be sensitive to the practical concerns associated with a child support application. It is, unfortunately, a practical reality of the interjurisdictional support programs that there are considerable delays. This does not mean that children do not have a need for support in the intervening period.

b) With respect to conduct, Ms. Counts is no stranger to the child support regime. She has been the beneficiary of various support orders and recalculations. She knew enough to terminate the support payable by Mr. Clayton. I find that it only stands to reason that she knew if she had an income, she would be obligated to pay support for William. Her statement at the end of her email “Let me know if I have missed anything” strikes me as coy. She knew enough to address decision-making, parenting time, and Mr. Clayton’s support obligation yet she did not come right out and ask what he expected of her with respect to support.

On the other hand, I have no evidence that Mr. Clayton responded to this email. He indicated verbally at the hearing of this matter that he did not request support from Ms. Counts prior to commencing his application in November 2021. He states that the relationship between the parties was such that he was confident they could not deal with this issue civilly. Yet he was engaged in email communication with Ms. Counts in September 2021 and failed to raise it when he received Ms. Counts’ invitation to address any issues she had not covered. While I have little evidence as to the history between the parties, it seems that Ms. Counts’ email raised the perfect opportunity to address the support issue.

In D.B.S., at para. 106, the Supreme Court of Canada characterized blameworthy conduct as “anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support.” At para. 107, the Supreme Court noted that blameworthy behaviour does not need to be engaging in active behaviour to avoid obligations. It may be enough for a payor parent to simply ignore their obligation to support their child.

Overall, I find that Ms. Counts engaged in blameworthy conduct by choosing to ignore her child support obligation. She is not a neophyte to these issues. She could have come straight out and asked Mr. Clayton if he wanted support but chose to ignore the issue. Having said this, Mr. Clayton could have at least responded to her email or sent an email when he commenced his application to notify Ms. Counts accordingly. Both parties should share some blame.

c) I have no evidence as to the circumstances of the child or circumstances of Ms. Counts. Mr. Clayton has been supporting the child by himself. Presumably the child has needed to be housed, fed, clothed, and transported. These are basic expenses. There are likely many other expenses associated with caring for the child since September 2021. There is no evidence as to any contributions by Ms. Counts. I do not know if a retroactive support award would create hardship. I do not have sufficient financial information to assess this.

[20] Based on the foregoing I find that an award of child support prior to the date of the hearing of this application is appropriate. Ms. Counts argues the child support should not commence prior to September 2022, while Mr. Clayton argues it should commence either September 2021 when the child came to live with him.

[21] In D.B.S., at para. 118 the Supreme Court noted that there are four options for the date to which the award should be retroactive:

a) The date when the application was made to court;

b) The date when formal notice was given to the payor parent;

c) The date when effective notice was given to the payor parent; and

d) The date when the amount of child support should have increased.

[22] The date of effective notice is the general rule, but sometimes the date when support should have started being paid, or another date, is the more appropriate date. This is particularly the case when there is blameworthy conduct on the part of the payor: D.B.S., at paras. 118 and 124.

[23] I find that in the circumstances of this case, it is appropriate to order child support payable effective the first month following the commencement of the application. Prior to that time Mr. Clayton did not signal an intention to claim support, although Ms. Counts should have known she had an obligation to pay it. Any delays with service of the application were not those of Mr. Clayton and neither he, nor the child, particularly in circumstances in which Ms. Counts would or should have been aware of her obligation, should suffer as a result.

What is the appropriate quantum?

[24] For 2021, Ms. Counts’ line 150 income on her income tax return was $36,443. This includes RRSP income of $16,875, net business income of $7,568.76 (gross is $18,086.78), and $12,000 (Canada Recovery Benefit). Ms. Counts argues that neither her RRSP income nor her government benefits should be included in income. As the RRSP income is a one-time withdrawal of capital, which Ms. Counts is repaying as part of an education RRSP loan, I agree that it is appropriate to deduct this from her income. This is not a recurring payment in the sense that Ms. Counts will receive regular withdrawals from a RRSP to support herself. I appreciate that courts have included even one-time RRSP withdrawals in income. Given the nature of the withdrawal and repayment obligation I find it is not appropriate to do so in this case. I see no reason to deduct her government benefit, without further evidence or information as to this benefit. I find that her 2021 income for support is $19,658.

[25] With respect to 2022, Ms. Counts’ Response to Application and income information were provided as of October 6, 2022. Ms. Counts estimated that her 2022 income will be $25,000. She says she started working full-time in May 2022.

[26] From January 2022 to March 2022, Ms. Counts says she was self-employed but discloses no income. She states that she has not yet finalized her “books” for 2022 but does not anticipate much income.

[27] Based on an income of $25,000 and one child, the Federal Child Support Guidelines table amount payable is $199.00 per month. As this amount is based on an estimated income only, it will need to be adjusted when Ms. Counts’ actual 2022 becomes known.

[28] With respect to ongoing income, Ms. Counts estimates it to be $25,240.89 based on her three most recent paystubs. I am uncertain as to how she calculated that amount. Her three most recent paystubs filed with her Response show that in each of the three pay periods she received gross pay of $1,816.67. Her paystubs reveal she is paid bi-weekly. I calculate her annual income to be $47,233.42. Child support payable is $438 per month commencing January 1, 2023.

[29] Neither party made submissions as to s. 7 expenses nor have they sought any order in this regard. It is presumed that paragraph 7 of the Consent Order of Feehan J., dated January 11, 2019, requiring the parties to each pay their proportionate share of s. 7 expenses shall remain in effect, subject to annual adjustments of the percentages paid by each party based on their incomes.

Order:

[30] It is ordered that:

a) Effective August 31, 2021, Mr. Clayton’s child support obligation to Ms. Counts pursuant to the Order of Feehan J., dated January 11, 2019, for the child William Marcus Clayton, born July 9, 2005, as adjusted annually by the Child Support Recalculation Program, is terminated.

b) Commencing December 1, 2021, Ms. Counts shall pay to Mr. Clayton child support for William in the amount of $158.00 based on an estimated annual income of $19,658.

c) Commencing January 1, 2022, and continuing through to December 1, 2022, Ms. Counts shall pay to Mr. Clayton child support for William in the amount of $199.00 per month based on an estimated annual income of $25,000.

d) Ms. Counts shall provide to Mr. Clayton verification of her total income for 2022 in the form of her income tax return as filed with the Canada Revenue Agency no later than April 30, 2023. She shall provide to Mr. Clayton her notice of assessment upon receipt.

e) Child support payable for the entire 2022 year shall be adjusted (either up or down) based on Ms. Counts’ actual Line 150 income on her income tax return for 2022. This will result in either Ms. Counts having underpaid support or overpaid.

f) Commencing January 1, 2023 and continuing on the 1st day of each month thereafter for so long as William continues to be a child of the marriage as defined in the Divorce Act, Ms. Counts shall pay to Mr. Clayton child support in the amount of $438 per month based on an estimated annual income for 2023 of $47,233.42.

g) All other provisions of the prior order shall remain in effect, including the requirement for annual income disclosure.

[31] If there are any calculation errors in this decision, if I have misunderstood the parties’ position with respect to Zachary, or if any clarity is required with respect to the adjustment for 2022 actual income, the parties may schedule a brief Zoom appointment before me.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz

DATE: February 27, 2023