Court File and Parties
COURT FILE NO.: FC-12-F020-0002 DATE: 2023/08/14
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Christine Anne Elizabeth Acorn, Applicant – and – Randy Neuman, Respondent
Counsel: Applicant, Self-Represented Respondent, Self-Represented
HEARD: July 28, 2023 (Belleville)
DECISION RE RETROACTIVE CHILD SUPPORT
BEFORE: Somji J.
Introduction
[1] The Respondent father was ordered to pay child support in 2013 following an order of Justice Deluzio dated September 16, 2013 (“Final Order”). The father respected the Final Order and made his child support payments until a medical condition in April 2021 left him unable to work and now earning disability. The father notified the Applicant mother in the fall of 2021 of his condition. On July 8, 2022, he initiated a formal Motion to Change seeking a new order for a downward adjustment of retroactive child support and a change in ongoing support payable for the parties’ 12-year old child on the basis of a material change in circumstances.
[2] The mother initially failed to file a Response to the Motion to Change, but was granted an extension of time. In the interim, Justice Tellier issued a Temporary Order reducing the amount of support payable by the father to $60/month. The mother filed a Response to the father’s Motion to Change on September 15, 2022, but failed to appear in court to address the matter on November 23, 2022, and again on March 1, 2023. The father was granted leave to bring a motion for summary judgment which I heard on July 28, 2023. The mother was served with the summary judgment motion materials but neither replied nor attended the motion hearing.
[3] The issues to be decided are whether the father should be granted a retroactive adjustment of child support and an amendment to ongoing support.
Analysis
[4] 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) Child Support Guidelines, O. Reg. 391/97 as am.; see also Colucci v. Colucci, 2021 SCC 24 at paras 34 and 114. 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 v. Colucci, 2021 SCC 24 at para 113.
[5] 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 v. Colucci, 2021 SCC 24 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 will have less ability to absorb the financial effects of a decrease in support: Colucci v. Colucci, 2021 SCC 24 at paras 83 and 84.
[6] The child lives with the mother. The father communicates through the grandmother and sees the child when he is able to. The Final Order required the father to pay $337/month based on his 2012 income of $38,000. The father respected his child support payments. He worked for 10 years at Kerry’s place until in April 2021 when was hospitalized and underwent a double bypass heart surgery which has left him unable to work due to brain fog and medical issues.
[7] From May 2021 until September 2021, the father earned Employment Insurance. When that expired in September 2021, he started receiving $849/month from Ontario Works. With the support of his social worker from Quinte Rehab, the father filed an application for CPP Disability and ODSP in the fall of 2021. Upon receipt of CPP Disability, his income increased to $1,299/month until January 2023. In the spring of 2023, his girlfriend and her daughter moved into his home increasing his total benefits to $2,023/month because of the family unit.
[8] As of May 6, 2021, the father had no child support arrears. His arrears only accumulated after his heart surgery in April 2021. His child support arrears as of June 30, 2023, are $3,775.01. As the father explains, had his child support been adjusted to his disability income to be payable to $60/month following his surgery, he would not have accumulated any arrears.
[9] The father spoke to the mother in the fall of 2021 and the winter of 2021 about his condition and ability to pay child support, but had no success in resolving the issue with her. Consequently, he filed for a Motion to Change the child support amount.
[10] I find the father is entitled to a retroactive downward adjustment of child support effective June 1, 2021. While it was a few months after the surgery that the father notified the mother of his change in circumstances, the mother would have known of the father’s medical condition on/around the time of hospitalization in the spring of 2021. I find the date of effective notice in these circumstances to be June 1, 2021.
[11] 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 Guideline: Colucci v. Colucci, 2021 SCC 24 at para 113. In this case, I find the father’s income for the period of June 1, 2021 to July 28, 2023, was $14,640 and his support payable should be adjusted downward retroactive to $60/month. On this basis, I understand the father’s child support arrears would effectively be rescinded.
[12] In addition, I find the father has provided sufficient evidence to establish that the change in circumstances is ongoing. He has provided full and frank disclosure including the increase in his income as a result of the extension of his family unit. Based on his current annual income of $15,588 from disability payments, the father will pay Guideline support of $90/month.
[13] There will be a Final Order that:
Pursuant to the Family Law Act, R.S.O. 1990, c. F.3, as am.
- Commencing on August 1, 2023, and on the first of every month thereafter, the father shall pay to the mother $90/month in Guideline child support based on his CPP Disability annual income of $15,588.
- The father’s child support for the period June 1, 2021, to July 28, 2023, is retroactively adjusted downward to $60/month based on his annual income of $14,640.
Pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996,
- The father shall provide to the mother and the Director of the Family Responsibility Office notification of any change in address or employment, including full particulars about the change, within ten (10) days of the change taking place.
- All support payments under this Order, unless the support order is withdrawn from the office of the Director, Family Responsibility Office, shall be enforced by the Director and amounts owing under the support order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued.
- For as long as child support is payable, the father shall provide the mother updated income disclosure by July 1st of each year in accordance with section 24.1 of the Child Support Guidelines O.Reg. 391/97 as am. Child support shall be adjusted accordingly.
[14] Should the retroactive adjustment create issues for FRO or leave the father with arrears, the parties may contact the Trial Coordinator to have the matter return before me. A copy of the decision shall be provided to FRO Counsel Rick Rolston and to Duty Counsel Danika Brown.
Somji J.
Released: August 14, 2023