Court File and Parties

COURT FILE NO.: FS-19-00010540-0000 DATE: 20230921 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Thurkkayini Kathirgamanathan, Applicant – and – Rajkumar Nageswaran, Respondent

COUNSEL: Shayanika Suresh, for the Applicant Self-represented Respondent

HEARD: August 17, 2023

BEFORE: VELLA J.

Reasons for Decision

[1] The Applicant, Mother, seeks an interim, without prejudice, order against the Respondent Father as follows:

(a) Child support for the child, AR, born January 1, 2018, in the amount of $361.00 per month at an annual income of $40,183, pursuant to the Child Support Guidelines, commencing September 1, 2023;

(b) Retroactive child support from August 1, 2018 to August 30, 2023 as a lump-sum payment of $17,088 as follows:

(i) $12,796.00 directed immediately from the funds held in trust, on behalf of the Respondent, by the Applicant;

(ii) The remaining $4,292.00 as a lump-sum payment within 30 days.

(c) 50% of the Child’s Section 7 expenses, commencing January 1, 2023;

(d) Retroactive contributions to the Child’s section 7 expenses from January 2019 to December 2022 as a lump-sum payment in the amount of $4,372.63;

[2] In addition the Applicant seeks an order that the Respondent file his taxes and provide his tax returns to the Applicant by July 1st of every year, and costs on a full indemnity basis.

[3] I heard submissions from both parties and read their respective affidavits.

[4] Section 15 of the Child Support Guidelines provides that a payor’s annual income is to be determined in accordance with sections 16 – 20. Section 16 provides that a payor’s annual income is their income set out under the heading “Total Income” in the T1 General form on their income tax return, subject to sections 17 to 20 and adjusted in accordance with Schedule III.

[5] I am satisfied that the calculations set out in the Mother’s affidavit are in accordance with the Child Support Guidelines, using the Respondent’s total income as reported on his Notices of Assessments for 2018, 2019, 2020 and 2021. The Mother is not seeking to impute income to the Father even though she believes he is also working jobs on the side for cash that is not reported on his income tax returns.

[6] The DivorceMate calculations Mother has provided support the amounts she is seeking for childcare both retroactively and currently, based on the Father’s income under “Total Income” of his Notices of Assessments.

[7] I am also satisfied that the Mother’s request that the Father be required to pay 50% of the section 7 expenses is justified. She is currently unemployed. In the past the only s. 7 expenses she has incurred is for the Child’s day care. She will return to work in or around February 2024 at which time those day care expenses will resume. I am satisfied that she has incurred the s. 7 expenses.

[8] The Father submits that he does not object to paying child support. However, he says that he cannot afford to pay the amount of child support being sought. Furthermore, he states that the Mother wrongfully withheld money in her bank account that derive from his 50% share of sale proceeds in an investment property.

[9] He does not dispute the amount of money she has withheld but says that by withholding that money since in or around February 2019, and forcing him out of their shared premises, she has caused his financial difficulties. He agrees to releasing the funds in their entirety to the Mother but in full and final satisfaction of those arrears. He also says that he can only afford $150 per month in child support currently.

[10] Child support and section 7 expenses are the right of the child. The Family Law Act and Divorce Act are clear that child support is to be calculated on the basis of the income earned. It is not calculated on the basis of what the parent says he can afford.

[11] I am satisfied that child support and s. 7 expenses are payable by the Father based on the Mother’s calculations. Furthermore, notice was given to the Father with respect to an order seeking child support and s. 7 expenses on a retroactive basis.

[12] Furthermore, the Father consents to the Mother using the remaining funds that derived from the sale of an investment property. The amount in trust is $12,796.50. However, the Father contends that the Mother has inappropriately held on to his share of these proceeds in the above amount and that this has caused him undue financial hardship. The Father also states that he is having to look after his elderly mother who is living with him, and can barely afford the rent he is paying.

[13] The Mother does not dispute that the funds have been in a bank account held by her, though she submits that this was proper as security for child support since the Father did not make any child support payments from the date of separation on July 7, 2018 to the date of the motion other than a one-time payment of $200 in each of April and May 2023, and a one time payment of $100 in July 2023. She was forced to bring this motion to compel the Father to pay the proper amount of child support under the Child Support Guidelines in light of the arrears and the Father’s advice to her lawyer by email dated April 26, 2023 that he would only pay “$200 a month and on a go forward basis.

[14] The Father also deposed in his affidavit that he provided a child support payment of $200 “from September 2018” to January 2019. He has not provided evidence to support that he made these payments, other than an initial email to the Mother’s prior lawyer dated October 21, 2018. He states in the email that he is going to set up a joint account and deposit monthly amounts of $200. However, there is no evidence before me that shows the funds were actually deposited, and the Mother denies receiving any.

[15] The monthly child support payable, based on the Father’s “Total Income” in the sum of $40,183, as reported on his Notice of Assessment for 2022 is $361.00 per month.

[16] The amounts owed for retroactive child support, based on the Father’s reported total income for 2018, 2019, 2020 and 2021, are as follows:

(a) 2018 (August to December): $270

(b) 2019 (January to December): $2,700

(c) 2020 (January to December): $3,384

(d) 2021 (January to December): $4,164

(e) 2022 (January to December): $4,332

(f) 2023 (January to August): $2,238

[17] The 2023 arrears takes into account, and applies, the child support payments made in 2023 of $650 (part payments made for April and May of $200 each, June of $100, and July of $150).

[18] The Father shall pay arrears of child support in the sum of $17,088.00. Against this sum, the amount of $12,796.50 shall be applied by the Mother, representing the remaining funds in trust arising from the sale of the investment property. This is on consent of the Father. The outstanding arrears are therefore: $4,291.50. I am entitled to take into account financial hardship on the Father in terms of issuing terms of an order that are just in the circumstances of the case. Also relevant is the fact that the Mother will receive a sizeable lump sum payment immediately to defray the hardship she has suffered by reason of the arrears. Accordingly, I am ordering that these child support arrears will be payable by the father in monthly installments of $50 until they are fully satisfied. This installment order applies to the child support arrears that have accrued to date only.

[19] In addition, I am satisfied that the Father must contribute to the child’s Section 7 expenses. The section 7 expenses up until May 2023 were childcare expenses. However, currently, the Mother is not working (as at the date of the hearing) and therefore she was not incurring child care expenses.

[20] Based on the reported incomes of the Mother and Father, I am satisfied that the Mother’s agreement to pay 50% is appropriate.

[21] Furthermore, I am satisfied on the evidence that the Mother had the child enrolled from January 2019 to May 2023 in subsidized day care and that she paid the full amounts, as evidenced by the Child Care Tax Receipts from 2019 to 2022, as follows:

(a) 2019: $1,506.90;

(b) 2020: $499.94

(c) 2021: $4,134.77

(d) 2022: $2,603.64

[22] Accordingly, based on a 50/50 share of section 7 expenses, the Father owes $4,372.63. For the same reasons as applies to the child support arrears, this sum shall be payable by the Father in monthly installments of $50. For clarification, this means the Father will pay $100 per month on account of the currently accrued child support and section 7 expenses. This is in addition to his ongoing obligations of child support and section 7 expenses.

Costs

[23] The Mother seeks costs on a full recovery basis in the sum of $5250 plus HST, reflecting 14 hours of work at the hourly rate of $375. The materials that were prepared for this motion were efficient and comprehensive. However, the time spent was a little excessive given the relative simplicity of the issues and the amount of evidence required. Furthermore, the time projected for a court appearance was 2 hours. The hearing in fact was about 40 minutes.

[24] I do not find that this matter warrants recovery on a full or substantial indemnity basis. The Mother has not demonstrated bad faith on the part of the Father.

[25] However, the Mother was entirely successful and is deserving of costs.

[26] Having regard to the factors under r. 24 of the Family Law Rules, I am fixing costs on a partial indemnity scale in the sum of $2,600 plus HST. This amount is fair and reasonable in the circumstances of this case. These costs are payable by the Father within 60 days from today.

Orders

(a) The following orders are made on an interim, without prejudice, basis:

(b) The Father shall pay child support, effective September 1, 2023, in the amount of $361.00 per month based on the Father’s reported income of $40,183;

(c) The Father owes child support arrears, as at August 31, 2023, in the sum of $17,088.00. On consent, the Mother is directed to apply the sum of $12,796.50 from funds held in trust by her to apply to the accrued child support arrears, to reduce these arrears to $4,292;

(d) The Father shall pay the remaining child support arrears, in the sum of $4,292, payable by monthly installments of $50 until fully satisfied.

(e) The Father shall contribute to 50% of the child’s section 7 expenses;

(f) The Father shall pay arrears of section 7 expenses, accrued as at August 30, 2023, in the sum of $4,372.63, payable by monthly installments of $50 until fully satisfied;

(g) The Father shall produce a copy of his income tax returns and Notices of Assessment by July 1 of each year;

(h) The Father shall produce his income tax returns to the Mother for the following years: 2019, 2020, 2021, 2022 within 90 days from the date of this Order.

(i) On consent, the Father shall change the designation of his life insurance policy from the Child to the Mother within 10 business days from the date of this Order, to secure his child support and section 7 expense obligations. He shall maintain the life insurance policy for so long as the child remains eligible for support.

(j) The Father will pay costs fixed in the sum of $2,938, all inclusive of disbursements and HST within 60 days from the date of this Order. The cost award shall be enforceable as support by FRO.

(k) A Support Deduction Order shall issue.

Justice S. Vella Released: September 21, 2023