Court File and Parties

COURT FILE NO.: FS-20-16618 DATE: 20230525

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

DIANE YARONA SINGH Applicant – and – KHEERAN SINGH Respondent

Counsel: Self-Represented (Applicant) Self-Represented (Respondent)

HEARD: May 23, 2023

REASONS FOR JUDGMENT

M. Kraft, J.

[1] The Applicant (“wife”) and the Respondent (“husband”) were married on September 2, 2000. They separated on September 2, 2019.

[2] There are four children of the marriage, S., age 18; M., age 17; K., age 14; and D., age 9.

[3] This uncontested trial proceeded orally, pursuant to the Order of Papageorgiou, J., dated June 20, 2022, and the husband was present and made submissions.

[4] Since the parties are married, the orders being sought are to be made pursuant to the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) (“DA”).

Issue to be Determined

[5] The issues to be determined at this uncontested trial are as follows:

a. What parenting orders should be made in relation to the children, including the following: i. Who should have decision-making responsibility over the major decisions that impact the children? ii. What kind of parenting time should the husband have? iii. Should the wife be permitted to travel with the children without the husband’s consent? iv. Should the wife be permitted to renew the children’s passports and/or other government-issued documentation without the husband’s consent or need to sign? b. Should income be imputed to the husband for child support purposes and if so, what is the husband’s child support obligation, retroactive and on an ongoing basis? c. Should the husband be ordered to pay the wife costs associated with this uncontested trial and these proceedings?

Litigation History

[6] On May 26, 2020, the wife issued the within Application seeking, among other things, sole decision-making responsibility with respect to the children; primary residence of the children; child support retroactive to September 2, 2019 (the date of separation); an order dispensing with the husband’s consent to enable her to obtain government-issued documentation for the children and travel; and costs. The wife served the husband with her pleadings on May 26, 2020.

[7] The husband did not file an Answer or Financial Statement.

[8] On September 14, 2020, the parties attended a case conference before Moore, J., at which he noted in his Endorsement that the husband had failed to file responding pleadings, provide any financial disclosure, respond to the wife’s Request for Information or file a case conference brief. Nonetheless, the husband did attend the case conference and indicated that he would file responding pleadings and participate in the action. As a result, Moore, J., granted the husband a further 30 days to do so, failing which the wife was to set the matter down and proceed with her claims by way of an uncontested trial.

[9] On May 16, 2023, the wife served the husband with her Form 23C and draft order. The uncontested trial came before Papageorgiou, J.

[10] On June 20, 2022, Papageorgiou, J. ordered the wife to serve the husband with her materials for the uncontested trial, a copy of her Endorsement and that the matter be heard as an oral hearing after 14 days of service upon the husband. She ordered that the husband may not file material, but that he may attend and make submissions and argument if he wishes.

[11] The uncontested trial came before me today. The husband was present and made submissions and argument. No material was filed by him.

Issue One: What parenting orders should be made?

[12] The wife seeks sole decision-making responsibility for the parties’ children, that they continue to reside primarily with her and an order that the husband’s parenting time take place on reasonable notice to her, and not be arranged by the husband with the children directly. She also seeks an order dispensing with the husband’s consent to enable her to obtain government-issued documentation for the children and to allow her to travel.

[13] Pursuant to s.16(1) of the DA, the court is only to consider the children’s best interests in making a parenting order or a contact order. In considering the best interest factors, set out in s.16(3) of the DA, the court is to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being: s.16(2).

[14] The best interest factors set out in s.16(3) of the DA include, but are not limited to the following:

a. The child’s needs, given the child’s age and stage of development; b. The nature and strength of the child’s relationship with each spouse; c. Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; d. The history of care of the child; e. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; f. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; g. Any family violence and its impact, on among other things, i. The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and ii. The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the children.

[15] The wife was the children’s primary caregiver during the parties’ 19-year marriage. She swears that the husband left the matrimonial home for extended periods of time, leaving the children in her care.

[16] During the marriage, the husband placed a first and second mortgage on the parties’ matrimonial home. He then stopped paying the mortgages which resulted in the parties’ being evicted from the home by power of sale on September 24, 2019. On September 2, 2019, the wife and four children were forced to move out of the matrimonial home and moved into her parent’s home in Scarborough, ON.

[17] During the husband’s submissions, he referred to the wife and children moving to her parent’s home in Scarborough as “abandoning” him. However, in an answer to a question from the court, the husband admitted that no one in the family had a choice to stay in the home and they were evicted from the home due to his non-payment of the mortgages.

[18] The wife deposed that she had no alternative but to move with the children into her parent’s home because they had sufficient room for her, and the four children and she had no other options.

[19] It is agreed that except for brief periods of time, the four children have resided with the wife primarily since the separation, as follows:

a. For 8 months, from August 2020 to March 2021, the oldest child, S., moved into the paternal grandparents’ home where the husband was staying; and b. For 5 months, from November 2020 to March 2021, the second oldest child, M. moved into the paternal grandparents’ home where the husband was staying.

[20] In March 2021, S. and M. returned to the wife’s home and resumed living with her primarily. The two younger children have always been in the wife’s care since separation.

[21] The wife submits that the children have suffered since the separation. It has been very challenging for them to be forced to move from a 3,500 square foot home into a basement apartment, where they are now living. Further, the children did not adjust well to living in Scarborough and missed their family, school, and community in Brampton. In particular, the wife submits the children have suffered as follows:

a. S. is currently in grade 12, and not attending school, even though she is enrolled in a co-op term. S. did not attend school and arrange her co-op placement. She is marked absent everyday and has lost her term, as a result. S. will not be able to graduate High School in June 2023. While S. works part-time at Walmart (about 20 hours a week), she and the wife have a challenging relationship, where S. has a pattern of leaving the wife’s home and then returning. S. suffers from depression and has been on and off medication. The wife does not have the funds to pay for private therapy for S. The wife’s extended health and dental plan through her employment offers limited coverage for therapy. b. M. is in grade 11, currently struggling with depression, and has not been going to school. The wife has assisted M. in accessing the school counsellor and is in contact with her teachers. The wife does not have the funds to pay for private therapy for M. c. K. is in grade 9 and doing well. d. D. is in grade 4 and doing well but his hair has been falling out. The wife has taken D. to the doctors and has been told that the hair loss is likely stress related. He is doing well in school.

[22] On May 13, 2023, the oldest child, S., moved into the husband’s home because of altercation between her and the wife. It is unknown how long S. will stay there.

The husband’s parenting time since separation

[23] The husband admitted that he did not have parenting time with the children for one year from September 2, 2019, and until October 2020. He took no active steps to have parenting time with the children in that one-year period. Any parenting time the husband had with the children was sporadic.

[24] According to the wife, starting in October 2020, the husband began to have parenting time with the children on a more consistent basis, generally on alternate weekends from Friday, after school to Sunday evenings.

[25] Presently, the husband has parenting time with the children pursuant to a schedule that he chooses. It not a consistent schedule on which the wife or children can rely. Rather, he makes his own arrangements with the children directly. Further, the husband does not necessarily take all four children for parenting time.

[26] The wife seeks an order that the husband continues to have reasonable parenting time as per his chosen schedule but that he arranges his parenting time through her, rather than through the children directly. The wife described an incident where the husband decided to retrieve their youngest child from school directly and took D. out on a school night without telling her. As a result, the wife did not know where the child was and was forced to calling the husband’s relatives to try and locate him. The husband, on this occasion, did not return D. until after midnight on a school night. In answer to a question from the court, the husband acknowledged and admitted that he kept D. out until midnight on a school night and submitted that he will be more mindful about that in the future.

[27] The husband objects to having to arrange parenting time with the wife, arguing that she will first consent to the parenting time he proposes and then withdraw her consent, claiming to have “changed her mind”, resulting in her being a negative gatekeeper.

[28] The wife’s oral submissions were clear that that she wants the children to have parenting time with the husband because she knows it is in their best interests and they miss their father.

[29] The husband indicated that he is prepared to have parenting time with the children in accordance with whatever order this court makes.

The Children’s Current Circumstances

[30] The oldest child, S. is 18 years of age. She is in Grade 12 and in High School. She will not be able to graduate in June 2023, as she is behind a year-and-a-half in credits and does not attend school regularly. Both parents agree that she is financially dependent on them and is unable to work or go to school full-time. S. struggles with depression and anxiety. She also has a challenging relationship with the wife. The husband agreed that S. struggles with depression and anxiety and that she has difficulty engaging in more than one task at a time and needs to do things at “her own pace”. The wife submitted that the best chance S. has to complete High School is to complete two terms as co-op terms, which is why she had arranged with the school for S. to be enrolled in a co-op program. Regrettably, S. did not follow through with this plan, and is missing this entire term of co-op.

[31] M. is currently in Grade 11. M. is also suffering emotionally because of the family’s circumstances. The wife submits that M. is having trouble getting to school in the morning and her schoolwork has suffered as a result. She explains that M. is embarrassed of the family’s current living circumstances and the fact that they live in a basement apartment. The wife is in contact with the school and M.’s teachers and submitted that M. has access to the school counsellor.

[32] It is not disputed that the wife has made all the important decisions that impact the children since the children. These decisions include proceeding with orthodontic treatment for the children, enrolling S. in two different certificate courses outside of school to assist her in developing skills so she can earn money, and in communicating with the children’s schools to ensure that the children are doing well in school and trying to reach solutions with the school to assist S. and M.

[33] The husband acknowledges that he has not had contact with the children’s schools, or any third parties involved with the children.

[34] The wife described the current living circumstances for herself and the children as being difficult. The children have had to adjust to moving from a 3,500 square foot house into a basement apartment where they are now living. The wife explained that after she and the children were evicted from the matrimonial home, they moved to Scarborough into her parent’s home. The children did not adjust well to living to Scarborough and to being away from their friends and school in Brampton. Further, the wife described her parents as not being warm and not making her or the children feel welcome. She used the word “toxic” to explain the environment for her and the children in her parent’s home. As a result, after a year and the wife being able to save enough money for first and last month’s rent, the wife moved with the children back into the neighbourhood where they used to reside in Brampton, and they now reside in a basement apartment.

[35] The wife describes the basement apartment as being the only affordable option she has for the children without the receipt of any child support or financial assistance from the husband. There are no windows that can be opened in the apartment and there is no where to store the children’s bikes.

[36] The wife seeks an order to enable her to travel with the children and dispensing with the husband’s consent that she do so, because he has unreasonably, in her view, withheld his consent to travel. The wife submitted that she received a travel allowance from work and planned a vacation with the children to Mexico. The husband refused to consent to the travel and, as a result, the wife lost $300, and the travel did not take place. Recently, at the end of April 2023, the wife travelled with the children to Cuba because the husband agreed to them going to Cuba but not Mexico because of safety concerns. The wife maintains that she is in a better position than the husband to determine whether travel she plans is safe and in the children’s best interests. Requiring the wife to obtain the husband’s consent, means that she may find herself again in a position where the husband will simply refuse to agree to the travel, thereby costing her unnecessary cancellation fees and disappointing the children.

Analysis

[37] I find that it is in the children’s best interests for the wife to have sole decision-making responsibility over the major and day-to-day decisions that impact the children based on the factors set out in s.16(3) of the DA and for the following reasons:

a. The husband did not actively seek to have parenting time with the children for a year after separation; b. The husband does not maintain a consistent and stable parenting schedule with the children; c. The husband prefers to have no interaction with the wife about his parenting time or how the children are doing because he is convinced that the wife will deny him access; d. The husband is not involved with the children in terms of their day-to-day needs, from a social-emotional or academic perspective; e. The husband is not willing to support the children’s relationship with the wife given how he denigrated her parenting to the court; f. The husband chose not to participate in these proceedings or comply with court orders and, as a result, he took no steps to seek any parenting rights in relation to the children; g. Several times, the husband asked the court to make a parenting determination, as opposed to the wife “getting to decide”. This stance on his part is concerning to the court since he has difficulties with the wife making decisions for the children, when he has abdicated his parenting rights in the way he conducted himself since the wife initiated these proceedings; h. The husband referred to the wife as being a negative role model for the children, without referencing the fact that it is the wife who has been the parent who has provided for alternate housing for the children and met their needs on her own, without any financial assistance, since separation; i. It is the result of the non-payment of the mortgages, that led to the wife and children to be evicted from the matrimonial home. The wife was the parent who took responsibility for the four children and found an alternate living arrangement for them. She remains the only parent who has taken steps to ensure that the children have housing, albeit far from ideal from her perspective or that of the children; j. The wife, while working full-time, remains the only parent who has demonstrated the interest and willingness to ensure that the children are being cared for and is meeting their needs; k. In addition, the wife has supported the children having an ongoing relationship with the husband, even though he decides with the children directly, leaving her without necessary information to know where the children are; and l. The husband admits that the wife has made all the decisions impacting the children since separation. He did not complain about any of the decisions that have been made nor did the husband make submissions that any of the decisions made by the wife were not in the children’s best interests.

[38] I am also persuaded that it is in the children’s best interests to have parenting time with the husband as per his reasonable requests but that he shall be obligated to advise the wife by email or text at least 24 hours in advance of the day and time he wants to spend with the children and not make parenting time arrangements directly with the children without notifying the wife.

[39] The wife shall be given authority to obtain any government issued documentation for the children without the need for the husband’s consent, such as passports, birth certifications, social insurance numbers, driver’s licence, etc. The wife shall also be authorized to travel with the children without notifying the husband or obtaining his consent in advance.

[40] The husband asked the court to make an order to enable him to travel with the children provided the wife consents. I am prepared to make an order that the husband shall be permitted to travel with the children on at least 21 days’ notice to the wife, provided she consents to the travel in advance, such consent not to be unreasonably withheld.

Issue Two: Should Income be Imputed to the Husband and if so, what is the Husband’s Child Support Obligation?

[41] Pursuant to s.15.1 of the DA, the court may make an order requiring a spouse to pay for child support. In making a child support order, the court shall do so in accordance with the Federal Child Support Guidelines, SOR/97-175 (“CSG”) s.15.1(3) of DA.

[42] The wife seeks child support for the four children in accordance with the CSG.

[43] Even though S. is 18 years of age and not attending school regularly, both parents agree that she remains a “child of the marriage” as defined by the DA, entitled to child support.

[44] It is agreed that the husband did not make any child support payments to the wife since the separation on September 2, 2019, despite the wife’s many requests for financial assistance from him.

[45] The wife seeks an order requiring the husband to pay child support for the parties’ four children in the sum of $1,017 a month, based on an imputed income to him of $42,000 a year.

[46] She also seeks an order requiring the husband to pay retroactive child support to the date of separation, September 2, 2019, based on a minimum wage income. She does not seek child support for S. and/or M. for the months they were residing with the husband’s parents.

[47] Beginning September 1, 2021, the wife seeks child support from the husband based on an annual income of $42,000 because it was on that date that she learned the husband was working full-time at Dynacare.

[48] Up until 2018, the husband owned and operated a grocery store. The wife swears that the husband told her the store netted sales of $20,000 to $22,000 a week. However, the wife acknowledges that the husband filed his income tax returns with Canada Revenue Agency (“CRA”) claiming an income of about $10,000 a year. The wife submits that his reported income to CRA is not his “true” income for child support purposes, evidenced by the fact that the husband was somehow able to finance the purchase of two real estate properties during the marriage. The wife also submits that the husband was known to work for cash that he did not declare.

[49] The husband closed the grocery store in January 2018. The wife explains that the husband and four children were in a car accident in 2017, after which the husband stopped working. The wife submitted that the husband started litigation after the car accident, claiming he suffered an injury to his hip and leg making him unable to work. The wife submitted that she did not believe the husband’s injuries were legitimate, since the four children who were in the vehicle with him when the accident occurred were not injured.

[50] During his oral submissions, the husband confirmed that he commenced litigation with Aviva, the insurance company, after the car accident but that he has since abandoned the litigation. The wife submitted that one of the children told her the husband received a pay out on account of the car accident, but she had no knowledge of what amount, if any, he received. In answer to a question from the court, the husband submitted that he did not receive a pay out on account of the litigation he commenced.

[51] The wife relies on the job website, Glassdoor, which outlines that the average base salary of a Dynacare courier driver is estimated to be $20.20 - $21.54 an hour with an annual income of $42,023 to $44,000 a year. On this basis, she seeks an order imputing an annual income to the husband of $42,000. Further, she seeks an order that starting on June 1, 2023, the husband pay her table child support for the four children in the sum of $1,017 a month in accordance with the CSG.

[52] The husband confirmed that he has been working at Dynacare since March of 2021 as a courier driver.

[53] The husband submits that the first job he obtained since the motor vehicle evidence started in March 2022. He works as a courier for Dynacare, earning $17.75 an hour. He submitted that at first, his position was casual but that starting September 2022, he began working full-time. His full-time income, as calculated by the court is $39,920, based on a 40-hour work week at $17.75 an hour, for 52 weeks a year.

[54] In answer to a question from the court, the husband admitted that he did not pay child support voluntarily to the wife, even when he obtained employment because he wants the court to determine how much child support he should pay.

[55] In terms of retroactive child support sought by the wife, the husband objects to the court imputing him with any income for the period from the separation on September 2, 2019, until March 2022, on the basis that he was not working during that time. He submits that he was rear-ended in the motor vehicle accident in 2017, he tensed up and suffered whiplash as a result. He described having pain from his neck along his left side. He acknowledges that he does not have a defined injury but maintains that he was not capable of working even though he has no evidence before the court to confirm that.

The Law on Imputation of Income

[56] When determining whether to impute income to a payor, the court has regard to s.19 of the CSG, which allows the court to impute income to a spouse as it considers appropriate in the circumstances. The circumstances include intentional under-employment or unemployment.

[57] In Drygala v. Pauli (2002), 61 O.R. (3d) 711 (C.A.), at para. 23, Gilles, J.A. set out the questions a court should ask when considering whether a spouse is intentionally under-employed or unemployed:

a. Is the spouse intentionally under-employed or unemployed? b. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs? c. If no, what income is appropriately imputed in the circumstances?

[58] The court also clarified that “intentional” under-employment or unemployment does not require a specific intent to evade child support obligations. There is no requirement of bad faith: Drygala, at paras. 25-26, 29.

[59] “Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. To meet this legal obligation, a parent must earn what he or she can earn”: Drygala, at para. 32.

[60] In terms of what income is appropriately imputed in the circumstances, the court cannot arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence: Drygala, at para. 33.

[61] The test for imputing income for child support purposes applies equally for spousal support purposes: Di Sabatino v. Di Sabatino, 2022 ONSC 383, para. 49, leave to appeal refused 2022 CarswellOnt 7089 (Div. Ct.).

[62] The wife has provided the court with information about the average income of a courier driver for Dynacare from the job website Glassdoor. In this manner, the wife has provided an explanation as to how she arrived at the annual income figure with which she seeks the husband to be imputed, namely $42,000 a year.

[63] While the imputation of income is not an exact science, the amount to be imputed as to reference real evidence: Albanez v. Samuda, 2019 ONSC 3610.

[64] In reference to the third question in the analysis, namely what income to impute, the court has “wide discretion”: A.E v. A.E., 2021 ONSC 7900, para. 262 (2)(c). The Court considers the evidence, and when selecting a number, “must consider what is reasonable in the circumstances”, looking at, for example, “age, education, experience, skills and health of the parent”: Drygala v. Pauli, supra, paras. 44-45.

[65] When considering income imputation, the person asking to impute income does not need to “point to an available job or jobs that meet his qualifications and set out the remuneration”: McNeil v. Dunne, supra, paras. 71-73. The threshold is not this high, and “evidence of previous earnings alone can be sufficient to establish a rational basis that meets the test”: McNeil v. Dunne, supra, para. 74.

Analysis

[66] Based on the evidence on record, I find that the husband should be imputed with minimum wage income from the separation, September 2, 2019 onward, until he began working full-time at Dynacare, which began in September 2019.

[67] After the uncontested hearing concluded, the husband forwarded to the court, a picture of his Offer of Employment from Dynacare, dated February 17, 2022. The one page provided by the husband indicates that the position from Dynacare was initially a casual, on call, position, that began on February 26, 2022, and for which the husband was being paid $17.75 an hour. Given that the husband was working on an “on call, and casual” basis, imputing him with minimum wage until September 2019, is reasonable in the circumstances.

[68] The issue is what level of income with which the court should impute the husband once he began working full-time at Dynacare. If the court accepts the husband’s submissions, his annual income is $39,920, using an hourly wage of $17.75. The husband did not, however, provide evidence that his hourly wage remained $17.75 when he began working full-time in September, 2021. The Glassdoor website shows the average hourly wage of a courier at Dynacare to be $20.20 - $21.54, which corresponds to an annual income of $42,000.

[69] In these circumstances, I am persuaded that the husband has not provided the court with complete evidence as to his current earnings. I find it reasonable to assume that the husband’s hourly wage increased when he began working full time. If the husband’s annual income is $39,920, then his table child support obligation for 4 children is $973 a month pursuant to the CSG. If the husband’s annual income is $42,000, then his table child support obligation for 4 children is $1,017 a month pursuant to the CSG, a difference of $44 a month. I find that as of September 1, 2021, the husband’s annual income should be imputed at $42,000 a year.

[70] Since S. moved into the husband’s residence on Mother’s Day, the husband’s ongoing obligation to pay child support is for the 3 children residing primarily with the wife. Therefore, commencing on June 1, 2023, and on the first day of each following month, the husband shall pay ongoing child support to the wife of $840 a month, being table child support for 3 children based on an annual income of $42,000.

[71] Section 8 of the CSG provides that if there are two or more children and each spouse has the majority of parenting time with one or more of those children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.

[72] Pursuant to s.3(2) of the CSG, the amount of child support set out in the applicable tables, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought, and the amount, if any, determined under s.7 is presumptive. In other words, there is no discretion in the CSG for the court to order any other amount of child support other than what is set out in the tables, if the children are under the age of majority.

[73] S., however, is over the age of majority. Pursuant to s.3(2) of the CSG, where a child to whom a child support order relates is the age of majority or over, if the court considers the amount of child support set out in the applicable tables to be inappropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child, the court can order an amount of child support it considers appropriate.

[74] In this case, however, both parties agreed that S. is entirely financially dependent on the parents, she is unable to attend school full-time or work full-time because of her mental health issues. Accordingly, I find that the correct amount of child support for S. is the amount determined by applying the CSG as if she were under the age of majority: s.3(2) (a).

[75] As a result, the wife is obliged to pay child support for S. pursuant to the CSG based on her current income of $70,000 in the table amount of $654 a month.

[76] The amount that remains owing to the wife by the husband, therefore, will be $186 a month commencing June 1, 2023 and on the first day of each following month.

[77] If and when S. resumes residing with the wife primarily, then the husband will have to begin to pay child support for 4 children on an annual income of $42,000, being $1,017 a month, commencing on the first day of the month following the day S. resumes residing with the wife.

Retroactive Child Support

[78] The wife also seeks an order fixing the arrears of child support at $34,057, for the period commencing September 1, 2019 to and including May 31, 2023, calculated as follows:

a. For the period September 1, 2019, to July 31, 2020, the husband should have paid table child support of $8,085, being table child support for 4 children of $735 a month, based on minimum wage income of $29,120 for 11 months; b. For the period August 1, 2020, to October 31, 2020, the husband should have paid table child support of $1,812, being table child support for 3 children of $604 a month, based on minimum wage income of $29,120 for 3 months; [1] c. For the period November 1, 2020, to March 31, 2021, the husband should have paid table child support of $2,270, being table child support for 2 children of $454 a month, based on minimum wage income of $29,640 for 5 months; [2] d. For the period April 1, 2021, to September 31, 2021, the husband should have paid table child support of $4,476, being table child support for 4 children of $746 a month, based on a minimum age of $29,640 for 6 months; e. For the period October 1, 2021, to December 31, 2021, the husband should have paid table child support of $2,253, beig table child support for 34 children of $751 a month, based on a minimum wage income of $29,848 for 3 months; f. For the period January 1, 2022, to August 30, 2022, the husband should have paid table child support of $6,008, being table child support for 4 children of $751 a month, based on a minimum wage income of $29,848 for 8 months; g. For the period September 1, 2022, to December 31, 2022, the husband should have paid table child support of $4,068, being table child support for 4 children of $1,017 a month, based on an imputed income of $42,000 for 4 months; h. For the period January 1, 2023, to May 31, 2023, the husband should have paid table child support of $5,085, being table child support for 4 children of $1,017 a month, based on an imputed income of $42,000 a month for 5 months.

[79] In addition to retroactive table child support, the wife seeks an order requiring the husband to pay retroactive s.7 expenses for the children.

[80] Section 7 of the CSG provides the court with the authority to order a spouse to provide for an amount to cover all or any portion of several expenses, considering the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation. The list of expenses which are categories of s.7 expenses are for uninsured medical/dental expenses and extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs: s.7(1) (b) and (d).

[81] The husband does not dispute the section 7 expenses claimed by the wife. He acknowledges that these expenses were incurred by the wife and for the children’s best interests. He also indicated in answer to a question from the court that he should contribute to these expenses. He asks the court to make an order about his obligation toward the children’s s.7 expenses.

[82] The wife submitted that she used to work at Subway but lost her job in June 2022. She then collected employment insurance until she was able to obtain a new position. In September 2022, the wife became employed by Mary Brown’s as a District Manager, and she earns an annual salary of $70,000. The wife acknowledged that there is a possibility for a bonus of up to 10% of her income each year. The wife has an extended medical and dental plan for herself and the children. The wife’s income since the separation (2019) was as follows:

a. In 2019: $64,466 b. In 2020: $50,587 c. In 2021, $60,400 d. In 2022, $76,810 e. In 2023: $70,000

[83] The retroactive section 7 expenses sought by the wife totalled $5,918, calculated as follows:

a. On August 4, 2021, the wife paid $800 for a retainer for M. at the completion of her orthodontic work. b. In July/August, 2021, the wife paid $3,250 for tuition for S. to attend a Lash and Brow Certificate program at GLOW College of Artistic Design, when she was 16 years of age. The goal was to provide S. with a skill set to enable her to obtain a part-time job and earn more money. S. has not fully completed the program yet; and c. On July 27, 2021, the wife paid $1,620 for a make-up artistry program for S. along with the incidental expenses associate with this program of $248.60.

[84] Using the wife’s income in 2021 of $60,400 and the imputed income of minimum wage for the husband of $29,848, his proportionate share of the s.7 expenses incurred by the wife in 2021, amounts to 33% which totals $1,953.13.

[85] On February 16, 2023, the wife began to incur orthodontic expenses for K., at the cost of $5,375. The wife is paying these fees monthly, starting on April 1, 2023 for 30 months at the rate of $173.39. Although the children are beneficiaries of the wife’s medical/dental plan provided through her employment, there is no coverage for orthodontia. Using an income of $42,000 for the husband and an income of $70,000 for the wife, she seeks an order requiring the husband to pay his proportionate share of K.’s ongoing orthodontics at 37.% or $2,015.62.

[86] Accordingly, the total section 7 expense arrears are $1,953.13 as of December 31, 2021 and $2,015.62 for K.’s orthodontics of $2,015.62. Combined with the table child support arrears of $34,057, the total sum of retroactive child support sought by the wife from the husband amounts to $38,025.75.

[87] The wife proposes that the husband pay these child support arrears off at the rate of $1,000 a month starting June 1, 2023. She argues he has the means to do so, since he is living in a property owned by his uncle rent free. During his submissions, the husband argued that he is not living rent free. While he is residing at a property owned by his uncle, the husband produced a letter from Mike Sookhoo, an Accountant, working for Bharat Sevashram Sangha, India’s Leading Monastic Order, on which the husband’s uncle’s property is located, dated May 22, 2023. This letter indicates that the husband is a tenant at the Church’s home paying $800 a month on a month-to-month tenancy and that he has been renting the premises since March 1, 2022. The wife questioned the legitimacy of this letter. The husband also submitted that he pays his cousin $300 a month to use his vehicle when he needs to do so.

[88] In answer to a question from this court, the husband argued that he cannot afford to pay the retroactive child support sought by the wife, at the rate of $1,000 a month. When asked what he would propose he could afford, the husband indicated that he would pay the child support arrears off in whatever amount I determine he should do so.

The Law on Retroactive Child Support

[89] In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, the court looked at three scenarios where retroactive child support might be ordered, one of which, is where there has not already been a court order for the payment of child support. This is the situation in the case at bar.

[90] Bastarache J. found that s. 15.1 of the DA, does not expressly provide for retroactive support orders. In the context of a claim for child support where no previous order has been made or agreement reached between the parties for the payment of one parent to another for child support, this court has jurisdiction to award retroactive child support under s. 15.1 of the DA on a contextual reading of the statute. The court found that there is no restriction in the DA as to the date from which a court may order that an order of child support may take effect. In this respect, retroactive support for a child is compensation for what is legally owed. D.B.S., paras. 81-84.

[91] The majority in D.B.S. confirmed bedrock principles relating to the obligation of separated parents to pay child support. The amount of support payable under this obligation depends on their ability or their income according to the governing support regime that applies to them.

[92] Bastarache J. observed that the mere fact of parenting places a great responsibility upon parents. They are immediately responsible as guardians and providers upon the birth of a child. Bastarache J. further observed that the parent and child relationship is one that engages not only moral obligations, but also legal obligations; support is an obligation that arises automatically upon the birth of a child; D.B.S., at paras. 36-37.

[93] In D.B.S., the court set out the two steps to decide the issue of retroactive child support. The court must first determine whether a retroactive award should be made on the facts of the case. This determination, in my view, is a question about entitlement. The second step is to decide the amount of support that would adequately quantify the obligation of the payor to pay support during the intervening time. This step requires the court to determine the date from which retroactive child support should be payable, as the amount payable each month is fixed by the table amount according the CSGs for the payor’s income in each year of the retroactive period.

[94] There are several factors to consider in determining whether retroactive child support should be ordered. These factors are often referred to as the D.B.S. factors and can be summarized as follows:

a. Is there a reasonable excuse for why child support was not sought earlier? b. Did the payor parent engage in blameworthy conduct? c. What are the child’s circumstances? d. Will hardship be occasioned by a retroactive award?

Analysis

[95] In this case, the wife issued the Application in May 2020, just 8 months after the separation. The wife submitted that the parties tried to work things out in their marriage, even after the separation in September 2019. By the Spring of 2020, when it was clear the relationship would not be salvaged, the wife issued the court proceeding so she could obtain child support because she had continuously been asking the husband for financial assistance, and he refused to contribute or help her. I find that the wife did not delay in her attempt to secure child support.

[96] I further find that the husband has engaged in blameworthy conduct. Although, the husband did nothing active to avoid his child support obligation, his conduct was blameworthy because he consciously chose to ignore his child support obligations: Put simply, a payor parent who knowingly avoids or diminishes his support obligation to his children should not be allowed to profit from such conduct: D.B.S., at para. 107. The husband knew when the wife and children left the matrimonial home because it was being sold by power of sale, that the wife and children had to find somewhere else to live. He was aware that the children were not only in the wife’s primary care, but that he took no active steps to see the children for the entire year that they resided with the wife’s parents. Notwithstanding this, he took no steps to provide any support for the family financially. He had no parenting time with the children and blamed the wife for moving the children to Scarborough, when that was her only option, and essentially abandoned them. The wife argued that the husband had a girlfriend and when she was told that he took her and her children out for dinner and bought her a lawnmower as a gift, she begged him to assist her financially to support their four children and he refused.

[97] Furthermore, the husband placed two mortgages on the matrimonial home and failed to pay the mortgage payments, resulting in the family being evicted. The wife submitted that the matrimonial home sold for $1.1 million. After the two mortgages of about $900,000 were paid off, the remaining equity of $250,000 was lost because the husband continued to go to court and tried to squat in the home. Once the husband was finally removed from the matrimonial home, the wife argued the equity was paid out to the lawyers. Other than two-bedroom sets, the wife and four children left the matrimonial home with nothing. The husband confirmed that the family was forced to move out of the matrimonial home and that it was sold by power of sale. He explained that the first mortgage was in favour of B2B Mortgage of about $615,000. The second mortgage was to a private lender. The husband argued that the total mortgages came to $850,000 and the equity in the home, after it was sold for $1.1 million went to pay court fees and lawyers.

[98] The present circumstances of the children are that they are in a more difficult financial situation than they were in at the time of separation. The wife has done her best to provide for the children financially. The children are all struggling because of the family’s living circumstances. There is no doubt, based on the evidence on record, that the children have undergone hardship since the separation.

[99] Since the husband chose not to respond to the wife’s Application or participate in these proceedings, despite being given opportunities to do so, the court has no proper evidence on record from the husband as to whether hardship would be occasioned by a retroactive child support award. The husband did, however, indicate that paying off retroactive child support at the rate of $1,000 would be a hardship to him.

[100] The court should attempt to craft the retroactive award in a way that minimizes hardship: D.B.S. at para. 116. While hardship for the payor parent is much less of a concern where it is the product of his own blameworthy conduct, it remains a strong one where this is not the case. In the case at bar, it is the husband’s own blameworthy conduct that has resulted in retroactive child support being owed by him.

[101] The wife submits that the husband currently lives rent free at a property owned by his uncle located at 2013 Codlin Crescent, Etobicoke, ON. The wife argued that she spoke directly with the husband’s uncle and aunt who confirmed that he resides there rent-free. However, after reading the letter from Mr. Sookhoo, dated May 22, 2023, I am persuaded that the husband is paying rent at the rate of $800 a month.

[102] I find that this is an appropriate case where child support should be awarded retroactive to September 1, 2019.

[103] While the wife’s retroactive child support calculations reduce the husband’s child support for the months when S. and M. were residing with the husband, the wife did not calculate what her child support obligation would be to the husband for those months.

[104] Section 8 of the CSG provides that if there are two or more children and each spouse has the majority of parenting time with one or more of those children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.

[105] Accordingly, I find that the wife should have paid the husband table child support for S. and M. of $5,691, calculated as follows:

a. For the period August 1, 2020, to October 31, 2020, when S. was residing with the husband, the wife should have paid table child support of $1,398, being table child support for 1 child of $466 a month, based on her 2020 income of $50,587 for 3 months; b. For the period November 1, 2020, to March 31, 2021, when S. and M. were residing with the husband, the wife should have paid table child support of $1,530, being table child support for 2 children of $765 a month, based on her 2020 income of $50,587 for 2 months, and table child support of $2,763, being table child support for 2 children of $921 a month, based on 2021 income of $60,400 for 3 months;

[106] Accordingly, the retroactive table child support owing by the husband of $34,057 shall be reduced by $5,691, being the retroactive table child support owing by the wife, such that the husband shall pay the wife retroactive table child support of $28,366. I also order the husband to pay retroactive s.7 expenses in his proportionate share, which totals $1,953.13, for total retroactive child support owing of $30,319.13. The husband shall pay the retroactive child support to the wife, at the rate of $650 a month until the arrears are paid, which should take about 46 - 47 months.

Issue Three: Should the husband be ordered to pay the wife’s costs associated with this Uncontested Trial and these proceedings?

[107] The wife seeks costs in the sum of $5,000 for this uncontested trial and these proceedings.

[108] The husband disputes having to pay costs despite acknowledging that it was wrong of him not to participate in these proceedings and failing to comply with costs orders. He claims he had to take time off work.

The Law on Costs

[109] Rule 24(1) of the Family Law Rules, O. Reg. 114/99 (“FLRs”) creates a presumption of costs in favour of the successful party, subject to the factors set out in r. 24: Beaver v. Hill, 2018 ONCA 840, at para. 10.

[110] The wife was successful on the retroactive child support issues, ongoing child support and the parenting issues. As such, she is entitled to costs.

[111] Subject to the provisions of an Act or the rules of court, costs are in the discretion of the court, Courts of Justice Act, R.S.O. 1990, c. C.43., s.131. By r. 24(10)(a) of the FLRs, the court is to decide on the costs of a step in the case promptly after dealing with the step, in a summary manner.

[112] Modern costs rules are designed to foster four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under Rule 2 (2) of the FLRs: Mattina v. Mattina, 2018 ONCA 867.

[113] While a successful party in a family law case is presumptively entitled to costs, an award of costs is subject to the factors listed in r. 24(11), the directions set out under r. 24(4) (unreasonable conduct), r. 24(8) (bad faith), r. 18(14) (offers to settle), and the reasonableness of the costs sought by the successful party: M. (A.C.) v. M. (D.) (2003), at paras. 40–43; Berta v. Berta, 2015 ONCA 918 at para. 94.

[114] The touchstone considerations of costs awards are proportionality and reasonableness: Beaver v. Hill, at para. 12. In Boucher v. Public Accountants Council (Ontario), at paras. 28-29, 37, the court held that costs must be fair and reasonable, and consistent with the reasonable expectations of the parties.

[115] Rule 24(4) provides that a successful party who has behaved unreasonably may be deprived of all or part of their costs or ordered to pay all or part of the unsuccessful party’s costs.

[116] The husband made submissions that while it was “despicable” of him not to have participated in these proceedings, he was going through a difficult time. Having said that, the husband acknowledged that even though he has been working since February 2022, he did not pay voluntary child support to the wife because he wanted the court to order him to do so.

[117] I find that the husband’s behaviour in this ligation amounted to bad faith as set out in r.24(8).

[118] The FLRs do not explicitly refer to costs on either a partial or substantial indemnity scale. Rule 24(8) refers to “costs on a full recovery basis,” where a party has acted in bad faith. I did not find bad faith in this case. The court has a range of costs awards open to it, from nominal to just short of full recovery.

[119] Costs must always be proportional to what is at stake in the case, and to the unsuccessful party’s reasonable expectation as to what costs he may face if he is unsuccessful. In appropriate circumstances, unreasonable behavior will result in a higher award of costs.

[120] In arriving at a costs figure, I must balance many considerations,

a. The husband’s refusal to abide by court orders; b. The husband’s refusal to participate in these proceedings; c. The husband’s refusal to pay child support when he was aware the children were in need and when he was making other payments for his own benefit for rent and for the use of a car; d. The husband’s refusal to negotiate with the wife and his position that he will only pay what a Court orders him to pay; e. The husband insisting on squatting in the matrimonial home and losing the equity in the matrimonial home, causing the wife to find appropriate accommodation for herself and the children without any contribution from him; f. The husband blaming the children’s difficulties on the wife’s parenting and referring to her as a negative role model, when she is the only parent who has provided for these children financially and emotionally since the separation. g. The wife having to proceed with her claims on an uncontested basis, at her sole cost; h. The wife is presumptively entitled to recovery for costs by virtue of her success and reasonable behaviour (as a litigant). i. The wife’s request for costs of $5,000 is reasonable and proportional.

[121] Considering the wife’s success, the fact that the husband’s conduct amounts to bad faith, and the husband should have expected to pay costs if he was unsuccessful on the uncontested trial, the husband shall pay to the wife costs fixed in the sum $5,000, inclusive of all disbursements, and HST within 15 days of the release of this Endorsement.

Disposition

[122] This court makes the following final order:

a. Pursuant to s.16(1), 16.1(1) and (4) of the Divorce Act, the applicant shall have sole decision-making responsibility in connection with the major decisions that impact the four children of the marriage; b. Pursuant to s. 16(6) and 16.1(4) of the Divorce Act, the three younger children shall reside primarily with the applicant. c. Pursuant to s. 16.1(4) and 16.1(5) of the Divorce Act, the applicant shall be permitted to apply and renew all government issued documentation for the children, including but not limited to passports, social insurance numbers, health cards, driver’s licence, birth certificates, without the need for the respondent to consent or sign as a parent. d. Pursuant to s.16.1(5) of the Divorce Act, the applicant shall be permitted to travel with the children without the need for the respondent’s consent. e. Pursuant to s.16.5(5), (6) and (7) of the Divorce Act, the respondent shall have reasonable parenting time with the children, upon providing the applicant directly with at least 24 hours’ written notice of the days and times of such intended parenting time. f. Pursuant to s.16.1(5) of the Divorce Act, the respondent shall be permitted to travel with the children, if the applicant consents to same, such consent not to be unreasonable withheld. g. Pursuant to s. 15.1(1), (3) of the Divorce Act, the respondent shall be imputed with the following income in each of the following years: i. In 2020, minimum wage income of $29,120; ii. In 2021, minimum wage income of $29,640; iii. From October 2021 to August 31, 2022, minimum wage income of $29,848; iv. From September 1, 2022, onward, an income of $42,000 a year. h. Commencing on June 1, 2023, and on the first day of each following month, the respondent shall pay the applicant child support for the three children of the marriage in the table amount of $840 a month, based on his annual income of $42,000 a year. i. Commencing on June 1, 2023, and on the first day of each following month, the applicant shall pay the respondent child support for the one child of the marriage in the table amount of $654 a month, based on her annual income of $70,000. j. The respondent shall pay the applicant 37.5% of the children’s s.7 expenses, which currently include the cost of K.’s orthodontia treatment, of $2,015.62, payable at the rate of $67.19 a month for the next 30 months, commencing on June 1, 2023, and on the first day of each following month for 30 months. k. Pursuant to s. 15.1(1) and (3) of the Divorce Act, the respondent shall pay 37.5% of the children’s additional s.7 expenses within 15 days of being served with a copy of the invoice for these items by the applicant via email. l. Pursuant to s.15.1(1) of the Divorce Act, the respondent shall pay the applicant retroactive child support of $30,319 at the rate of $650 a month starting June 1, 2023, and on the first day of each following month until satisfied; m. Commencing on June 1, 2024, and on the first day of each following June, the respondent shall provide the applicant with his income information as set out in s.21(1) of the CSG, which includes a copy of his complete income tax return and notice of assessment; the most recent statement of earnings, indicating the total earnings paid in the year to date, including overtime. In addition to any income information that must be included under paragraphs (c) to (g) of s.21(1), if the respondent receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information; n. 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 amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. o. The respondent shall pay the applicant costs of this uncontested trial, fixed in the sum of $5,000, inclusive of HST and Disbursements, within 15 days of the release of this Endorsement, such sum to be enforced by the Family Responsibility Office as support. p. An SDO shall issue.

Released: May 25, 2023

M. Kraft, J.

[1] S. moved into the husband’s parent’s home with him from August 1, 2020, to March 31, 2021.

[2] D. moved into the husband’s parent’s home with him from November 1, 20202 to March 31, 2021.