REASONS FOR DECISION ON MOTION RE RETROACTIVE AND ONGOING CHILD SUPPORT
COURT FILE NO.: 09-0287 DATE: 2023/08/02 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Crystal Gale Kirkwood, Applicant – and – Paul Joseph Laderoute, Respondent
COUNSEL: Gregory Best, for the Applicant Respondent, Self-Represented Mr. Eastwood, FRO (friend of the court)
HEARD: June 7, 2023 - Brockville
BEFORE: Somji J.
Overview
[1] On June 7, 2010, Justice Pedlar issued a final parenting order (“Final Order”) requiring the Respondent father to pay child support based on his imputed income of $41,000 for two children following an uncontested trial. Based on this imputed income, the mother was to receive approximately $80,000 in child support for the period 2010 to 2021, but has received just over a quarter of this amount. According to the mother, the issue of child support has been a source of considerable stress, anxiety, and conflict between the parties. In June 2018, she commenced a Motion to Change to address certain terms of the Final Order including child support. She seeks a new order governing retroactive and ongoing child support.
[2] The father raises three issues. First, he claims that his child support arrears should be retroactively adjusted downward in accordance with his actual income because his income has never been as high as what was imputed back in 2010 save for in the year 2020. The father does acknowledge, however, that he only filed his income taxes for the years in question with Canada Revenue Agency (CRA) in 2018. These returns were only provided to the mother in 2022. Having received the financial disclosure, the mother does not oppose a retroactive adjustment downward in accordance with the father’s actual income for the years 2010 to 2021.
[3] Second, the father claims that $15,000 was garnished from his wages as child support deductions to be provided to the Director of the Family Responsibility Office (“FRO”), but the money from these garnishments is not reflected in the FRO Statement of Arrears as monies received by them or distributed to the mother. The father questions what happened with these garnishments and requests that his arrears be reduced accordingly.
[4] Counsel for FRO attended the motion hearing as a friend of the court to address the father’s claim that there are anomalies in the Statement of Arrears, but counsel was not aware of the overpayment issue nor provided materials on this issue before the hearing.
[5] Third, the father claims he is presently on social assistance and cannot pay any child support going forward.
[6] This decision addresses the first of three issues:
i. Should there be retroactive adjustment downward of the father’s child support, and if so, how far back should it be adjusted?
ii. Should there be a further adjustment to the father’s child support arrears based on the garnishments reflected in the father’s paystubs?
iii. Should there be a new order for ongoing child support and if so, in what amount?
[7] As explained below, issues ii and iii are adjourned for further hearing before me.
Evidence relied on for the Motion
[8] For this motion decision, I have relied on the following documents filed by the parties:
a. Mother’s Amended Motion to Change dated December 21, 2022 b. Mother’s Affidavit dated June 1, 2023 c. Mother’s Financial Statement dated June 1, 2023 d. Mother’s Factum June 1, 2023 e. Mother’s Trial Record, Volumes 1 to 3 f. Father’s Response to Motion to Change, January 17, 2019 g. Father’s Affidavit August 22, 2022 h. Father’s Affidavit Parts 1 and 2, May 31, 2023 i. Father’s Financial Statement May 31, 2023 j. Affidavit of Alexandra Domarazki, Articling Student, FRO, May 3, 2023 k. Director’s Statement of Arrears May 29, 2023
Factual Background and Position of the Parties
[9] The parties commenced a common law relationship in June 2004. They are parents to two children presently: J.L. age 16 and O.L. age 14 (“children’). The parties separated in November 2009 and the children have remained in the mother’s primary care since that time. The father has three other children from other relationships.
[10] On June 7, 2010, the court issued a Final Order granting the mother custody of the children with reasonable access to the father and child support of $618/month based on an imputed income of $41,000 after the father was noted in default. The father was also ordered to pay for 67% of the children’s s. 7 expenses in proportion to the parents’ respective income. The mother’s income was $20,400 at the time: Final Order at paras 5 and 6.
[11] In June 2018, the mother brought a Motion to Change to address various issues including the enforcement of child support. The Motion to Change was amended in December 2022 with the mother’s new counsel to focus solely on child support.
[12] The court issued temporary orders pending a full hearing on the matter. On March 18, 2019, Justice Robertson suspended ongoing support on a temporary, without prejudice basis, and ordered payment of child support arrears at a rate of $50/month. Any tax refunds or federal garnishments were to remain in place and be credited towards the child support arrears owed by the father. The father was ordered to provide updated income disclosure: Temporary Order of Justice Robertson, March 18, 2019.
[13] In March 2020, Justice Johnston reduced the child support payable by the father to the mother on a temporary basis commencing March 6, 2020 to $100/month with a review of that amount to be scheduled for January 2021. In the event of a default of this payment, the mother was entitled to return to a motion hearing upon 7 days notice for determination of the quantum of support: Temporary Order of Justice Johnston, March 10, 2020.
[14] The father requests that child support be retroactively adjusted downward in accordance with his actual income from 2010 to 2021. He is of limited financial means and presently living with his parents. The father has not been employed since 2022 because he has had to take care of his adult son in recent years. The father does not dispute the calculation of support set out in Table A below based on his reported income for those years.
[15] The father acknowledges he was late in completing his tax returns for the years 2010 to 2021. These documents are necessary to support his argument that his income fell short of what was imputed. The father only provided the mother with his Notices of Assessment and Income Tax Returns for these years on August 22, 2022.
[16] Upon review of the father’s financial disclosure, the mother is agreeable to a retroactive downward adjustment based on the father’s actual reported income for the years 2010 to 2021. The mother takes this position recognizing the father is struggling not only financially, but also emotionally with respect to the care of one of his other adult children.
[17] The mother provided a table calculating the retroactive child support payable to her based on the father’s actual income for the years 2010 to 2021.
Table A:
| Year | Reported Income $ | Monthly support $ | Annual Child Support $ |
|---|---|---|---|
| 2010 | 35,774.00 | 519.00 | 5,709.00 |
| 2011 | 23,582.88 | 354.00 | 4,248.00 |
| 2012 | 20,790.00 | 317.00 | 3,804.00 |
| 2013 | 53,828.00 | 799.00 | 9,588.00 |
| 2014 | 34,080.00 | 495.00 | 5,940.00 |
| 2015 | 30,472.40 | 438.00 | 5,256.00 |
| 2016 | 39,404.00 | 563.00 | 6,756.00 |
| 2017 | 39,432.00 | 589.00 | 7,068.00 |
| 2018 | 4,359.00 | 0 | 0 |
| 2019 | 11,907.00 | 0 | 0 |
| 2020 | 62,994.13 | 958.00 | 11,496.00 |
| 2021 | 32,523.92 | 495.00 | 5,940.00 |
Total: $65,805
[18] Based on the imputed income set out in the Final Order, the total child support payable by the father to the mother for the 11 years between 2010 to 2021 would be $81,576. If child support was to be retroactively adjusted in accordance with the father’s actual income, the father’s payable child support for 2010 to 2021 would be $65,805.
[19] According to the Affidavit of Alexandra Domarazki, an articling student employed by FRO, the father has made support payments to FRO of $25,896.57 to date. The father’s outstanding child support arrears are presently $51,827.63 based on the support ordered in the Final Order. These figures were determined after FRO’s Finance Department conducted a manual reconciliation of the father’s arrears at the request of the court.
[20] If an order is made to retroactively adjusted support downward to $65,806, the mother’s counsel calculates the father’s arrears owing would be $39,908.43. The mother does not take any position on the father’s conflicts with FRO. She relies on the FRO Statement of Arrears as provided to her.
[21] The father argues there are anomalies in the FRO Statement of Arrears. For example, in one instance, to reinstate support, FRO had to withdraw $72,630 on the Statement of Arrears and then return the funds which they did through two entries of $36,315. I disagree with the father’s suggestion that this anomaly undermines the accuracy of the Statement of Arrears. I find it was a data entry exercise that does not change the arrears owed by the father. Upon review of Ms. Domoradzki’s Affidavit and upon hearing submissions of FRO counsel, I am satisfied that the Statement of Arrears accurately reflects the debits and credits made including any adjustments.
Issue 1: Should there be retroactive adjustment downward to the father’s child support, and if so, how far back should it be adjusted?
[22] While the mother has generously agreed to retroactively reduce the child support payable to her for the years 2010 to 2021 from $81,576 to $65,805, the reduction is not automatic. This is because it is well established that child support is the right of the children. Parents have a financial obligation to their children arising at birth and continuing after separation: Colucci v Colucci, 2021 SCC 24 at para 36.
[23] Child support is tied to the payor’s income. The presumptive rule is that the quantum of support will be determined by the Table amounts: s. 3(1) Federal Child Support Guidelines; see also Colucci at paras 34 and 114. Where income is not known, the court is entitled to impute income which was the case here. However, once a support order is issued, the onus is on the payor to establish there has been a material change in circumstances warranting a change in the support to be paid. The onus is on the payor to show a material decrease in income that has some degree of continuity and that is real and not one of choice: Colucci at para 113.
[24] Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation: Colucci at para 113. In this case, the father did not provide the mother with any effective notice of any change in his income nor did he provide the relevant financial disclosure until August 2022. He also did not seek to amend the Final Order. It was the mother who filed a Motion to Change to address child support.
[25] Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure: Colucci at para 113. The rationale for the rule of effective notice is to ensure that children and families are adequately supported and do not find themselves facing financial uncertainty and hardship in circumstances where they have relied on a prior court order. In particular, support recipients with lower incomes, as is the case here with the mother, will have less ability to absorb the financial effects of a decrease in support. Changes in a family’s financial circumstances can have detrimental impacts on children and are to be minimized where possible by effective communication by the payor parent. As the Supreme Court of Canada explains in Colucci at paras 83 and 84:
[83] A retroactive decrease will mean less funds, a possible set-off and even a repayment from the recipient to the payor. This in turn implicates and intensifies the certainty interest of the child and the recipient who have relied on the prior court order. It will generally be more difficult to adjust to the receipt of lesser, rather than greater amounts of support, increasing the likelihood and severity of hardship. Those with lower incomes will have less ability to absorb negative financial events.
[84] The best interests of the child lie in predictability and stability of household finances. The Guidelines contemplate that a drop in payor income may lead to a drop in the child’s standard of living, just as it would if the parents were still together. However, payors must promptly communicate such changes to the recipient, just as they would if the parents had not separated, and move to have the terms of the order or agreement changed to restore certainty to child support arrangements between the parties. This ensures that the child is impacted as little as possible by the parents’ separation and continues to benefit from predictable and regular support from the payor parent. A drop in support can be presumed to have detrimental impacts on the child, but ongoing communication and disclosure cushions those impacts and preserves the child’s best interests to the fullest extent possible. For these reasons, in the absence of effective notice of a drop in payor income, certainty and predictability for the child are to be prioritized over the payor’s interest in flexibility.
[26] While the father may have alerted the mother to his financial troubles earlier, I find that the date of date of effective notice in this case is August 21, 2022, which was when the father provided the mother with the financial disclosure (income tax returns) to enable the mother to confirm his income for past years.
[27] Notwithstanding that the father is only entitled to a retroactive adjustment of child support from the date of notice, the court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The court’s exercise of discretion is guided by the factors set out in D.B.S. which are as follows: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased): Colucci at paras 96 to 113.
[28] The Supreme Court of Canada stated in Colucci at para 113 that the payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct. I consider these factors below:
i. Reasons for delay in seeking a decrease
[29] The father’s May 31, 2023, affidavit appends portions of the affidavits from FRO and the mother with no information about the father’s own personal circumstances. The father has not provided any explanation for why he did not seek to vary the child support terms in the Final Order. Furthermore, most of his submissions at the motion hearing focused on his conflicts with FRO regarding the status of his arrears. What can be gleaned from his Response to the Motion to Change dated January 17, 2019, is that since March of 2018, he has had difficulty with maintaining employment in part because his driver’s licence has been suspended seven times since 2014 by FRO as a result of failed support payments. We also know that the father had not filed his tax returns for the years in dispute which likely contributed to the delay.
ii. The payor’s conduct
[30] The father has paid support, but not voluntarily. As explained in Ms. Domaradzki’s affidavit, the father’s child support payments have been the result of FRO’s garnishments of wages and tax credits. According to FRO, from 2010 to November 2013, two (2) payments totaling $471.79 were received by FRO and were payable to the mother. From December 2013 onwards, thirty-seven (37) payments totaling $19,495.34 were received by FRO and were payable to the mother. As of June 7, 2023, the father’s child support arrears as per FRO’s statement of arrears was $51,827.63.
iii. The circumstances of the children
[31] The mother is 40 years of age. She is presently unemployed and on social assistance. Her social assistance income along with the Child Tax Benefit and government rebates is $36,770.40. She is presently supporting two teenage children. She owns a vehicle valued at $2000 and does not have any other assets. The mother has less than $1000 in savings. Fortunately, she has been able to set aside some funds in the amount of $13,000 for the children’s R.E.S.P.s which they will require should they attend post-secondary education in a few years. Finally, the mother lives alone and has no other sources of support.
[32] While the mother has generously agreed to a retroactive deduction in support out of sympathy for the father’s present situation and perhaps, for peace of mind given the ongoing stress and conflict over this issue, the court must keep in mind that child support is the right of the child and not the parent.
[33] Furthermore, one of the children J.L. is autistic. While the mother has not identified what types of ongoing support J.L. needs, it is clear from her financial statement that J.L. has received some financial support in the past from the Ontario Autism Program. It is unclear if the father has contributed to any costs related to J.L.’s care or for any s. 7 expenses (extracurriculars, camps, professional services, etc.) for the children since 2010.
iv. Hardship
[34] Based on the father’s submissions, he has been dealing with emotional and financial hardship since August 2020. According to his May 2023 financial statement, he is presently unemployed and earning social assistance in the amount of $8356.20 annually. He has outstanding motor vehicle fines to pay of $2,150. His only asset is a 2014 Yamaha Stryker valued at $9000. He is living with his parents and trying to manage a crisis involving one of his adult children. His support arrears have accumulated significantly, and he is having difficulty making support payments.
[35] The father is capable of full time employment. He has worked consistently since the parties separation and in 2020, earned as much as $62,000. However, given the challenges with his current adult son, it is difficult to gauge when he will be able to resume employment.
v. Conclusion
[36] The father’s conduct in failing to adequately communicate and share with the mother his financial disclosure and his delay in addressing retroactive child support certainly do not warrant a retroactive decrease to child support. However, when one considers the D.B.S. factors as a whole, the father’s present financial circumstances, that the distinction in the child support amount following a retroactive adjustment downward would be a approximately $15,000 over an 11 year period, and that the mother is agreeable to the adjustment, I find that in the specific circumstances of this case, a retroactive adjustment should be granted.
[37] Having determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines: Colucci at para 113.
[38] There will be Final Order that the father’s support payable for the years 2010 to December 2021 is retroactively adjusted downward based on his reported income for those years and the support amounts calculated under the Guidelines as set out in Table A.
[39] FRO has credited the father to date for any support payments that he has made since 2010 and those credits will be maintained accordingly. It is important to note, however, that given there was a temporary reduction in support to $100 ordered in March 2020 pending determination of this Motion to Change, the father’s support payable for 2020 and 2021 will have to be adjusted up according to his income for those years which was $62,994.13 for 2020 and $32,523.92 for 2021. This will have the resulting affect of increasing the father’s child support arrears.
Issue 2: Should there be a further adjustment to the father’s child support arrears based on the garnishments reflected in the father’s paystubs?
[40] During the motion hearing, the father produced a large number of pay stubs from two former employers in 2013 which indicated that certain payments were garnished from his pay and given to FRO. However, these payments do not appear on the FRO Statement of Arrears as having been received. When the father contacted the employers’ human resources departments, they were not prepared to trace the funds for him.
[41] One possible explanation may be that the father had other support deduction orders at the time for his other children, and the amounts deducted were allocated towards those support payments. The father states he has checked this and not located the same on his other Statement of Arrears for his other children.
[42] This issue of possible overpayment was not brought to FRO’s attention until the motion hearing. Counsel for FRO attended the hearing to address the current Statement of Arrears and allegations of other anomalies raised by the father such as the data entry issue, but was never provided information regarding the garnishments and possible overpayment.
[43] Consequently, the matter will be adjourned to a further hearing so that FRO may examine the father’s materials to determine if the payments can be properly traced.
Issue 3: Should there be a new order for ongoing child support effective January 1, 2022, and if so, in what amount?
[44] The father states he cannot afford to pay ongoing child support.
[45] In her June 1, 2023, affidavit, the mother indicates she requires financial assistance to support her children. Her financial situation remains as described above. However, at the motion hearing, the mother’s counsel indicated the mother was agreeable to foregoing child support given the father has had to deal with issues involving his adult son. Counsel for the mother indicates they are taking the father’s word with respect to his 2022 earnings, and they have not received the father’s income tax return for 2022.
[46] As emphasized in Colucci, in the absence of an effective notice of a drop in payor income, certainty and predictability for the children are to be prioritized over the payor’s interest in flexibility: Colucci at para 85. Effective notice means not only communicating with the recipient parent that there has been a change in the payor’s financial situation, but disclosing documentation in support of that information: Colucci at paras 86 and 87.
[47] While the father has provided his social assistance pay stubs and an updated financial statement, I find that a 2022 Income Tax Return and Notice of Assessment should be filed before a final order for ongoing support is issued.
[48] Given that this matter is to return before the court with respect to the allegation of overpayment to FRO, the issue of ongoing support will be adjourned for a further hearing at that time. In the interim, there will be an order on a temporary, without prejudice basis, that the will continue to pay $100/month for ongoing child support for the period effective January 1, 2022. There will also be a condition on the Temporary Order that the father will continue to pay $50/month towards his child support arrears and have his tax refunds or federal garnishments continue to be credited towards the child support arrears he owes. Finally there will be a term on the Temporary Order that the father shall serve (on the mother’s counsel) and file with the court his 2022 Income Tax Return and Notice of Assessment by September 5, 2023, and serve and file his annual tax return by June 1st of each year.
[49] The mother’s counsel shall draft a Final Order regarding the retroactive adjustment as well as Temporary Order regarding ongoing support, payment of arrears, and disclosure as ordered and forward it to my attention for review and signature.
[50] The parties and FRO will contact Trial Coordinator to obtain a continuation date before me for the fall of 2023. Updated briefs/reports should be filed at the time.
Other
[51] The restraining order dated June 7, 2010, is vacated.
[52] At the motion hearing, the father raised a parenting issue between the children and the father and paternal family. The parties are encouraged to try and resolve the issue of parenting time, and if not resolved, the parties can schedule a case conference on the issue and prepare the necessary materials accordingly. The parenting issue need not be before me. I will remain seized only of the child support issues including those related to FRO.
Somji J. Released: August 2, 2023