Court File and Parties

COURT FILE NO.: FS-11-135-0001 DATE: 2023-04-14 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Wilda Theresa Carrier-Finch, Applicant AND: James Hilliard Homenuik, Respondent

BEFORE: Heeney J.

COUNSEL: James Battin, counsel, for the Applicant The Respondent, self-represented

HEARD: April 4, 2023 at Woodstock

Endorsement

[1] This is an application by the applicant to vary the child support order of Mitrow J. dated October 24, 2011. It required the respondent to pay child support for the child Waylon James Homenuik, born October 3, 2008, in the amount of $200 per month. This is the table amount of support for one child pursuant to the Child Support Guidelines, O. Reg. 391/97, based on the respondent having annual income of $23,600.

[2] The parties were never married, and indeed, according to the applicant, they never actually lived together. The child support order was, therefore, made pursuant to the Family Law Act, R.S.O. 1990, c. F.3. Thus, this application is governed by s. 37 of that Act.

[3] The issues to be determined are these:

• What support payments has the respondent made during the relevant time?
• Should income be attributed to the respondent, over and above the income shown on his income tax returns and notices of assessment, relating to “under the table” income from a business known as “The Outside Guy”?
• Has there been a material change in circumstances such that the support order should be varied?
• If so, should child support be varied retroactively to the beginning of 2017, as requested by the applicant, and in what amounts?
• How should any arrears generated by the court’s order be paid by the respondent?

1. What support has the respondent paid?

[4] The parties agreed from the outset to withdraw from enforcement by the Family Responsibility Office, such that payments of child support were made directly by the respondent to the applicant. The applicant testified that this was done by way of e-transfers. She was able to use her banking records to prepare a chart showing what he has paid since 2017.

[5] According to the evidence of the applicant, the respondent paid child support faithfully through to the end of 2017, having paid the required amount of $2,400 in that year. However, in 2018 he made one payment only, and paid nothing at all in 2019 or 2020. This prompted the applicant to commence this application on July 30, 2020.

[6] An interim child support order was made in this proceeding on April 16, 2021 that varied the amount to $334 per month, commencing May 1, 2021. That was the table amount based on income of $38,832. The respondent has paid child support consistently ever since, and in fact his payments have exceeded the amount required by the interim order.

[7] The respondent denies that he paid nothing at all from early 2018 until the end of 2020. He says that he gave the applicant cash whenever he picked up the child for visitation. He acknowledges, however, that rarely exercised access since the early years following the breakdown of their relationship, so his opportunity to make such cash payments would, on his own evidence, have been extremely limited. His failure to exercise access to his son has clearly been an issue with the applicant. She testified that Waylon is hurt by the fact that his father rarely bothers to see him, and never takes him on vacations or holidays.

[8] An issue arose during the applicant’s evidence in chief, responding to what she believed was an allegation that the respondent had put a new roof on her house in partial satisfaction of his support obligation. She strongly denied any such arrangement, and said that the respondent was paid for his work. This turned out not to be an issue, because the respondent testified that this happened in 2015, which is prior to the period in question. He also confirmed that the applicant’s husband Jeremy Finch paid for the materials, and paid the respondent $3,000 in cash for his labour. Thus, the value of his labour did not go toward his support obligation.

[9] The respondent concedes that he is unable to prove what cash payments he made from 2018 to 2021, since he has “no paper trail”. He said his current wife had warned him not to pay in cash, but says he did so anyway. He said that he and the applicant switched to cash in 2018 “because it was easier”. I do not accept that. It is difficult to see what could be easier than using e-transfers, as they had been doing since the original support order was made, given that they involve little more than a few keystrokes, can be done from anywhere, and generate a record of payments made.

[10] I reject the evidence of the respondent, and prefer the evidence of the applicant, based as it is on banking records. I find that the respondent has paid the following:

• 2017: $2,400
• 2018: $200
• 2019: $0
• 2020: $0
• 2021: $3,365
• 2022: $4,800
• 2023: $1,600 (up to and including the payment due April 1, 2023)

2. Should income be attributed to the respondent?

[11] The applicant testified that when she and the respondent were in a relationship, she helped him set up a business doing construction and renovation work, including siding, eavestroughs, facia and so on. It was called “The Outside Guy”. The respondent worked for cash, and never claimed any of that income for income tax purposes. She believes that he continued to operate that business after their relationship ended in June, 2011, up to and including 2021. She estimates that he earned at least $10,000 per year, and asks the court to impute income in that amount for the years 2017 to 2021 inclusive.

[12] The respondent admits running a cash-only business under the table in the past, but testified that he ceased doing so once he got a full time job in 2015. Ever since then, he has claimed all of his income on his tax return. Indeed, in 2022, after recovering from carpal tunnel syndrome surgery, he was offered three months’ work, and claimed it on his income tax, as well as disclosing it to the applicant. She concedes receiving this disclosure.

[13] The applicant has not put forward any evidence from customers for whom the respondent has allegedly done work, nor evidence that he has been advertising that he is open for business. She has no direct evidence, from her own observations, that he is working “on the side”, earning income over and above his wages from his full-time job. Her case is based entirely upon photos and other postings that she has copied from the respondent’s Facebook page, as well as that of his wife, many of which date back 10 years or more. However, the only one that shows him in the act of constructing anything is where he was building a shed for himself. There is also one photograph, showing him at the top of a ladder at the end of a barn, but it is undated, and the respondent was asked no questions about it during cross-examination. The bulk of the photos relied upon by the applicant relate to him having a boat, a relatively new pickup truck, a trailer, a motorcycle and a hot tub, and taking frequent vacations with his wife and friends to tropical destinations. All of that is to support her theory that he is living beyond his means, and therefore must be earning more money than he is reporting.

[14] One difficulty with this theory is that it is conceded that the respondent’s wife brought both a boat and a trailer into their relationship, which were later traded in on newer models. It also fails to refute the respondent’s evidence that these assets were purchased, in large part, with borrowed money, some of which remains to be repaid. Furthermore, the respondent received an inheritance from his mother’s estate in the amount of $80,000, which provides a source of funds, quite apart from employment income, that would explain these purchases. The hot tub, in particular, does not appear to be a luxury that the respondent indulged in with excess cash. I accept his evidence that he has a spinal cord tumour, as well as shoulder and wrist problems, and bought the tub to deal with his pain so as to avoid pain killers. He financed that purchase, and will continue to pay $111 per month on it for the next four years.

[15] In my view, more is required to support a request for the attribution of income than the applicant’s belief that the respondent is working under the table. That belief must be supported by objective evidence. That evidence is lacking. I accept the respondent’s income for the years in question to be that which is disclosed by his income tax returns and notices of assessment, which is as follows:

• 2017: $56,685
• 2018: $34,426
• 2019: $52,618
• 2020: $49,167
• 2021: $53,269
• 2022: $57,180

3. Has there been a material change in circumstances such that the support order should be varied?

[16] It is immediately obvious from reviewing the list of the respondent’s income since 2017 that there has been a material change in circumstances, in that his annual income is considerably higher than the figure of $23,600 upon which the original order was made.

[17] This leads us to the next question.

4. If so, should child support be varied retroactively to the beginning of 2017, as requested by the applicant, and in what amounts?

[18] Although I was provided with no caselaw by either party to guide me in my consideration of this issue, there is no doubt that the leading case on variation applications of this kind is S. (D.B.) v. G. (S.R.), 2006 SCC 37, commonly referred to as “D.B.S.”. That case dealt with four appeals, two of which related to retroactive support claims under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and the other two of which were under provincial legislation. Accordingly, it provides guidance in the present matter which, as already noted, is governed by the provincial Family Law Act.

[19] The applicant asks that the court vary the child support order, retroactive to the beginning of 2017, based on his income in each of those years. This would instantly generate a substantial amount of arrears, greatly in excess of those that would have accumulated under the original order.

[20] In the majority decision of Bastarache J. at para. 5, he addressed the presumptive date which a variation order should be retroactive to:

Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of his/her intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility.

[21] In this case, there was no evidence as to when, if ever, the applicant gave effective notice to the respondent of her intention to seek an increase in monthly child support. She was asked in chief if she ever asked the respondent to pay support, and she said she did, and his response was “never nice”. She testified that he said “you’re the one who wanted to break up the family. You married a millionaire, he can pay”. However, I understood this to be a reference to the respondent paying support in general, which he stopped doing in 2018, as opposed to indicating her intention to seek an increase in support.

[22] In the absence of such evidence, I conclude that the date when the applicant gave effective notice was the date she issued her application in this proceeding, which was July 30, 2020. This is the presumptive date for commencement of the variation order.

[23] It is open to the court to order that the variation be retroactive to a date earlier than the date of effective notice, and s. 37(2)(a) of the Family Law Act expressly gives the court the power to vary a child support order retroactively. In considering whether to do so, and to what effective date, D.B.S. states that the court should consider the following factors, “none of which are decisive” (para. 99):

1. Is there a reasonable excuse for why support was not sought earlier;
2. Conduct of the payor parent;
3. Circumstances of the child; and,
4. Hardship occasioned by a retroactive award.

[24] Bastarache J. addressed the first factor at paras. 101-3:

Delay in seeking child support is not presumptively justifiable. At the same time, courts must be sensitive to the practical concerns associated with a child support application. They should not hesitate to find a reasonable excuse where the recipient parent harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family. Equally, absent any such an anticipated reaction on the part of the payor parent, a reasonable excuse may exist where the recipient parent lacked the financial or emotional means to bring an application, or was given inadequate legal advice: see Chrintz v. Chrintz (1998), 41 R.F.L. (4th) 219 (Ont. Gen. Div.), at p. 245. On the other hand, 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.

Not awarding retroactive child support where there has been unreasonable delay by the recipient parent responds to two important concerns. The first is the payor parent’s interest in certainty. Generally, where the delay is attributable to unreasonableness on the part of the recipient parent, and not blameworthy conduct on the part of the payor parent, this interest in certainty will be compelling. Notably, the difference between a reasonable and unreasonable delay often is determined by the conduct of the payor parent. A payor parent who informs the recipient parent of income increases in a timely manner, and who does not pressure or intimidate him/her, will have gone a long way towards ensuring that any subsequent delay is characterized as unreasonable: compare C. (S.E.) v. G. (D.C.). In this context, a recipient parent who accepts child support payments without raising any problem invites the payor parent to feel that his/her obligations have been met.

The second important concern is that recipient parents not be encouraged to delay in seeking the appropriate amount of support for their children. From a child’s perspective, a retroactive award is a poor substitute for past obligations not met. Recipient parents must act promptly and responsibly in monitoring the amount of child support paid: see Passero v. Passero, [1991] O.J. No. 406 (Ont. Gen. Div.). Absent a reasonable excuse, uncorrected deficiencies on the part of the payor parent that are known to the recipient parent represent the failure of both parents to fulfill their obligations to their children.

[25] As already discussed, the applicant was closely monitoring the respondent’s Facebook page, and concluded that he was living a comparatively lavish lifestyle, but did not bring a variation application until July 2020. She provided no explanation, let alone a reasonable one, for this delay.

[26] As to the second factor, “blameworthy conduct” on the part of the payor can justify a retroactive variation. Counsel for the applicant relied upon the fact that the respondent did not provide disclosure of his income from year to year as constituting unreasonable behaviour on the part of the respondent, justifying a retroactive award. Such disclosure is automatically required pursuant to s. 24.1 of the Ontario version of the Guidelines.

[27] This argument would have more force if there was evidence that the respondent was aware of that requirement, and deliberately chose to ignore it. The respondent was not cross-examined on this point. The only question asked in this regard was this: “After that year [2011] did you ever go to her and tell her you were not paying enough support because your income went up?” The answer was “no”.

[28] The third factor is the circumstances of the child. In this regard, the applicant was asked, in chief, how did the non-payment of support affect her son? Her response was “my son always had what he needs. My husband was always there for Waylan.” Shortly afterward, she said “emotionally I am sure this affected my son, but it hasn’t affected him getting what he needs because I always provide for him”.

[29] The fourth factor to consider is hardship to the payor. The respondent indicated that he has no idea how he would ever be able to pay the arrears that the applicant is claiming. He said he has no bank balances anymore, is living on credit cards, and is “in a very bad place”. One problem with verifying this, however, is that the only Financial Statement that has been filed by him in this proceeding is one sworn September 23, 2020, despite the requirement in the Rules to file an updated statement immediately prior to trial. It shows that, at that point in time, he had about $100,000 in equity in his house, and $17,700 in debts, aside from his mortgage.

[30] It is now necessary to consider and balance all of these factors, none of which is dispositive. Given the lack of evidence, I do not place a great deal of weight on the hardship to the payor. From the only Financial Statement he has filed, it would appear that he has sufficient equity to borrow the amount needed to satisfy any arrears.

[31] As to the circumstances of the child, it appears that Waylon has enjoyed all of the advantages he would have received had both parents been fully supporting him. This militates against a retroactive award. As Bastarache J. said, at para. 113:

Because the awards contemplated are retroactive, it is also worth considering the child’s needs at the time the support should have been paid. A child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award. On the other hand, the argument for retroactive child support will be less convincing where the child already enjoyed all the advantages (s)he would have received had both parents been supporting him/her: see S. (L.). This is not to suggest that the payor parent’s obligation will disappear where his/her children do not “need” his/her financial support. Nor do I believe trial judges should delve into the past to remedy all old familial injustices through child support awards; for instance, hardship suffered by other family members (like recipient parents forced to make additional sacrifices) are irrelevant in determining whether retroactive support should be owed to the child. I offer these comments only to state that the hardship suffered by children can affect the determination of whether the unfulfilled obligation should be enforced for their benefit.

[32] As to whether there is reasonable excuse for why support was not sought earlier, I have already found that there is none. This also militates against a retroactive award, and supports the use of the default date of July, 2020, when effective notice was given.

[33] That leaves the issue of “blameworthy conduct” on the part of the payor. The respondent did not hide income or misrepresent his income, nor did he intimidate the applicant. There is no evidence that he intentionally ignored the disclosure requirements in s. 24.1. The failure to proactively disclose increases in income can justify a retroactive order, depending on the circumstances. Here, there is no question that the respondent’s income increased substantially from the figure that formed the basis of the original order. Having said that, the respondent’s total income remained relatively modest by today’s standards. Through the good graces of the applicant’s spouse, Mr. Finch, all of Waylon’s needs were being met, and the parties appeared to be getting along well. It was not until the respondent stopped paying support altogether that a problem arose, which led to this application.

[34] As Bastarache J. said at para. 102, which is quoted in full above, “a recipient parent who accepts child support payments without raising any problem invites the payor parent to feel that his/her obligations have been met.” Even though the respondent was paying less than the Guidelines would have required based on his income from year to year, I conclude that, given that Waylon was being well-supported by his mother and her spouse and was not lacking for anything, the respondent would not be unreasonable in concluding that he was meeting his obligations by continuing to pay support as required under the original order.

[35] Where his conduct became blameworthy, though, is in 2018, when he stopped honouring that original order. At that point, he could not reasonably conclude that he was meeting his parental obligations. In my view, that is the appropriate date of retroactivity.

[36] I have calculated the amount of child support that should have been paid, from 2017 forward, to be the following. Except for 2017 and the first month of 2018 (when the original order was in effect), it uses the table amount of support for one child, based on the respondent’s income for each year, which is listed above at para. 15:

Year	Amount Due	Amount Paid	Cumulative Arrears
2017	12 x $200 = $2,400	$2,400	$0
2018 (to January 31)	1 x $200 = $200	$200	$0
2018 (Feb. 1 forward)	11 x $298 = $3,278	$0	$3,278
2019	12 x $485 = $5,820	$0	$9,098
2020	12 x $453 = $5,436	$0	$14,534
2021	12 x $492 = $5,904	$3,365	$17,073
2022	12 x $529 = $6,348	$4,800	$18,621
2023 (to April 30)	4 x $529 = $2,116	$1,600	$19,137

[37] A final order will go varying the child support order of Mitrow J., retroactive to February 1, 2018, to the monthly amounts specified in the table above. On an ongoing basis, a final order will go that the respondent shall pay support for the child Waylon in the amount of $529 per month, commencing May 1, 2023 and on the first day of each month thereafter. This is the table amount of support for one child based on annual income of $57,181.

[38] In addition, so as to leave no question as to the respondent’s obligation regarding annual disclosure, an order will go that, for so long as child support is paid, he must provide up-to-date income disclosure to the applicant each year, within 30 days of the anniversary date of this order, in accordance with s. 24.1 of the Guidelines.

5. How should any arrears generated by the court’s order be paid by the respondent?

[39] The effect of this order is that the respondent is in arrears of support as of now in the amount of $19,137. He shall pay these arrears at the rate of $300 per month, payable on the first day of each month commencing May 1, 2023. While his Financial Statement indicates that he should be able to borrow the money necessary to pay these arrears, I am not prepared to rely on it, given that it is 2 ½ years old. The respondent may well find it more convenient to borrow the money and pay the arrears, but I am not going to compel him to do so on the information before me.

[40] With respect to costs, I am advised by the Trial Coordinator that Mr. Battin has provided a Costs Outline indicating the costs he is seeking on behalf of the applicant, as the successful party. The respondent shall serve and file his written response to those submissions within 15 days. The applicant will have 5 days thereafter to serve and file any reply.

Mr. Justice T. A. Heeney Date: April 14, 2023