Court File and Parties
COURT FILE NO.: FS-20-00099090-0000 DATE: 2023 04 27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amol Gupta v Palvi Gupta
BEFORE: Fowler Byrne J.
COUNSEL: Supriya Joshi, for the Applicant Ajit Saroha, for the Respondent
HEARD: March 7, 2023
E N D O R S E M E N T
[1] The Respondent Mother Palvi Gupta (“the Mother”) brought a motion, seeking the following:
a) An order striking the Application of the Applicant Father Amol Gupta (“the Father”) for contempt, and if granted, leave to proceed to an uncontested trial; in the alternative, the Mother seeks disclosure;
b) An order that retroactive child support from the date of separation to December 31, 2020 or to February 22, 2023 be paid;
c) An order for ongoing child support;
d) An order amending the parenting order of Justice Bloom of August 18, 2021, allowing the Mother to have sole decision making authority and to have the child resides primarily with her;
e) An order allowing the Mother to obtain the child’s passport and travel documents, and to travel, without the Father’s consent; and
f) Costs.
[2] At the return of this motion, the parties advised that the parenting issues had been resolved. The Mother also advised that she was not pursuing the striking of the Father’s pleadings. This is advisable being that there was no personal service of a Motion for Contempt. I was also advised that additional disclosure had been provided and ongoing child support had been agreed to. Accordingly, the only issues for me to decide is what retroactive child support should be paid, and the costs of this motion.
Background
[3] The parties were married on March 8, 2015 and separated on October 21, 2017. They have one child, who is almost six years old. Since the date of separation, the child has resided primarily with the Mother. The parties have now been in litigation for longer than the duration of their marriage.
Retroactive Child Support
[4] The Mother has been seeking financial disclosure for some time. At the case conference in this matter on August 18, 2021, Justice Bloom ordered the parties to provide outstanding disclosure within 30 days. On an interim basis, he further ordered that the Father started paying child support in the sum of $240 per month, based on an estimated income of $28,000.
[5] The Father’s financial disclosure was not forthcoming. The Mother was forced to bring a motion for further disclosure on August 18, 2022. On that date, Justice Stribopoulos ordered the Father to provide disclosure within 60 days and awarded the Mother her costs on a full indemnity basis, citing the Father’s bad faith.
[6] Following receipt of the Father’s disclosure, some of which was provided after the motion was brought, the Mother has learned that the Father’s actual income was as follows:
2015: $50,749 2016: $54,764 2017: $53,406 2018: $52,013 2019: $54,626 2020: $47,299 2021: $84,135
[7] I have no income disclosure for 2022 or 2033 from the Father.
[8] While the date of separation was previously contested, the parties now agree that the date of separation is October 21, 2017.
[9] In light of the Father’s income in 2021, ongoing child support has been increased to the sum of $784 per month, starting on March 7, 2023. Unfortunately, they disagree on what is owing in arrears. In particular, the parties dispute when notice was given of the Mother’s claim for child support arrears, and thus, how far in the past the Mother is entitled to go in her quest for arrears. The Father claims that the Mother was in India from October 2017 until approximately March 2021. He had no idea that the Mother wanted child support and received no notice that she was claiming same. The first notice he received, he claims, was when the Mother served her Answer, dated March 26, 2021, wherein she made her claim for prospective and ongoing child support. The Father states that the effective day of notice of her claim for child support is a triable issue.
[10] The parties agree that from the date of separation until August 18, 2021, no child support was paid. As indicated, from August 18, 2021, until the return of this motion, the Father has only paid $240 per month.
[11] I have the ability to award retroactive child support prior to trial, if I have the appropriate evidence to support the claim: Desrochers v. Tait at para. 31; Turk v. Turk at para. 55; Faccio v. Faccio, 2018 ONSC 1225 at para. 49.
[12] If I find that it is appropriate to do so, I am bound by the direction set out in the Supreme Court of Canada decision of D.B.S. v. S.R.G., 2006 SCC 37. In this case, when determining if a retroactive order should be made, the court states that I should consider why the support was not sought earlier, the conduct of the payor parent, the needs and circumstances of the child, and any hardship occasioned by a retroactive order: at para. 94-117.
[13] If I determine that a retroactive order should be made, I have to determine the date from which the award should be made retroactive. The court does not have to rely on the date that formal proceedings are commenced or formal notice given. The court may rely on some type of indication from the recipient parent that child support is being sought. That being said, the recipient parent does have to follow up and not leave the matter dormant for an extended period of time. Generally, it will be inappropriate to make a support award retroactive to a date more than three years before the recipient parent brings up the issue to the paying parent: D.B.S. at para. 120-125.
[14] This is not a case where there was already an order in place that the Father wishes to vary, as was addressed in Colucci v. Colucci, 2021 SCC 24. If a retroactive order is made here, it will be the first time such arrears are addressed from the date of separation.
[15] In support of the Mother’s claim for child support, she has not provided any evidence as to why she did not seek child support sooner. The date of her claim in the Answer though, is clear. There is no need for a trial to determine this. I have ample evidence of the Father’s conduct since this litigation commenced as to his failure to provide adequate disclosure. I also have evidence that the Father has earned more than he suggested at the case conference. The Mother has provided evidence as to the needs of the child. She indicates that the child has autism and has additional childcare expenses. She also indicates that she received no support from the date of separation until the order of Justice Bloom, a period of close to four years. She also indicated that she has taken care of all of the child’s needs to that date.
[16] The onus of showing that the Father would suffer hardship is on the Father himself. In his affidavit, he does not indicate that any hardship would be suffered. In fact, he makes a few suggestions as to how arrears could be paid once the date of the notice is sorted out.
[17] Considering all of these factors, I find that a retroactive award is warranted. Unfortunately, the Mother has provided no evidence of any notice she may have given to the Father that she was seeking retroactive child support other than in the Answer. Accordingly, on this motion, it is appropriate to make an award of retroactive child support only from March 1, 2018, three years prior the date of her Answer, without prejudice to her right to seek further arrears from the date of separation, should she have evidence to present at trial. Also, the Father must provide his income for 2022 and onwards at trial to determine the proper arrears owing for that time period. Until that time, I will calculate his arrears to this date utilizing the income of the last year for which the Father disclosed same, namely for 2021.
Conclusion
[18] Based on the evidence with respect to the Father’s income, to date, I have determined that child support arrears are owing by the Father to the Mother from March 1, 2018 to February 2023 in the sum of $31,930. This accounts for the sum of $240 per month that I credit the Father from August 2021 to the end of February 2023. My calculations can be found at Schedule “A” attached.
[19] This is without prejudice to the Mother’s ability at trial to show that an earlier notice period is engaged and that she is otherwise entitled to child support arrears from the date of separation until February 2018. It is also without prejudice to both parties’ ability to seek an adjustment for the arrears owing from January 2022, if it is proven that the Father’s income was different from that in 2021.
[20] At the end of the motion, the parties made their submissions as to costs. I have considered the parties success, the amount claimed by both parties, and the reasonableness and proportionality of the costs sought, and find that the sum of $6,000 is an appropriate amount.
[21] Accordingly, I make the following order:
a) The Father shall pay to the Mother retroactive child support for the period of March 1, 2018 to February 28, 2023 in the sum of $31,930, payable in 30 days;
b) The sum set out in paragraph 21(a) herein is without prejudice to the Mother’s right to claim at trial that retroactive child support should be payable from the date of separation to February 2018, and without prejudice to either parties’ right to vary the child support arrears owing as of January 1, 2022, when up to date financial information is provided;
c) The Mother is entitled to her costs of this motion on a partial indemnity basis, fixed in the sum of $6,000, inclusive of fees, disbursements and taxes, also payable in 30 days; and
d) The remainder of the Mother’s motion is dismissed.
Fowler Byrne J.
DATE: April 27, 2023
Schedule “A”
| Dates | Father's Income | Monthly amount | No. of Months | Total |
|---|---|---|---|---|
| March 1, 2018 to Dec. 31, 2018 | $52,013 | $479 | 10 | $4,790 |
| 2019 | $54,626 | $504 | 12 | $6,048 |
| 2020 | $47,299 | $439 | 12 | $5,268 |
| 2021 | $84,135 | $784 | 12 | $9,408 |
| 2022 | $84,135 | $784 | 12 | $9,408 |
| January 1, 2023 to February 28, 2023 | $84,135 | $784 | 2 | $1,568 |
| $36,490 | ||||
| less received $240 x 19 months (Aug 2021 to Feb 2023) | -$4,560 | |||
| $31,930 |