Court File and Parties

Court File No.: FS-23-00035232-0000 Date: 2024-09-03 Superior Court of Justice - Ontario

Re: Jessica Soo-Chan, Applicant And: Juan Rodriguez, Respondent

Before: Madam Justice A.P. Ramsay

Counsel: Jessica Soo-Chan, Self-Represented Juan Rodriguez, Self-Represented

Heard: June 11, 2024

Endorsement

I. Introduction

[1] This is a motion by the respondent father, Juan Rodriguez, to change child support stemming from two Family Responsibility Office (FRO) orders (File Nos. 0723735 and 0755966) dating back to 2007. The parties were never married. The respondent is asking the court to recalculate child support for each year and retroactively reduce child support from the beginning. In the Motion to Change Form, the respondent indicated the motion was to change the table amount of child support.

[2] The applicant mother, respondent on this motion, opposes the motion.

II. Disposition

[3] The motion is dismissed for the reasons below.

III. Background

[4] Mr. Rodriguez is working. He is apparently with a union, ACTRA. His motion to change is not based on the child turning 18, moving out on his own, working full-time, or not pursuing post-secondary studies. Their son was 17 when the motion was launched. Rather, Mr. Rodriguez is seeking an order reducing the frequency or termination of garnishment by FRO for support payments based on change in his circumstances retroactive to the beginning.

[5] Mr. Rodriguez indicates that approximately 50% of each pay cheque is currently being garnished. The applicant mother, responding party, Jessica Soo-Chan, suggested that this was the percentage as well, though neither party pointed the court to any evidence in the materials to support this argument. It matters not, for the reasons explained below. Parents are mandatorily required to pay child support. Child support in this case is based on the Ontario Child Support Guidelines, O. Reg. 391/97 (the “Guidelines”), attached to the Family Law Act, R.S.O. 1990, c. F.3. The Guidelines requires financial disclosure of the payor parent as the level of child support is geared towards the payor’s income level but may depend on several factors.

[6] Mr. Rodriguez’s child support obligations emanate from a Final Order of Timms J., dated November 20, 2007. This was the second of two orders which were made by Timms J. dealing with child support. The first order was on March 12, 2007. Both orders were obtained approximately 17 years ago.

[7] In the first order, dated March 12, 2007, Timms J. ordered Mr. Rodriguez to pay child support payments in the amount of $117, starting from April 1, 2007, based on an imputed income of $14,700 a year. Under the second order in November 2007, Timms J. made a finding that Mr. Rodriguez’s annual income was $27,456, and increased child support to $239 commencing June 1, 2007.

[8] Mr. Rodriguez says FRO has been double dipping, taking under the two orders. Ms. Soo-Chan argues that there have been many delinquent payments over the years. She says that FRO has taken steps to send enforcement notices to various potential sources of income, has reported the matter to the credit bureau, and has issued a writ of seizure and sale. The Financial Account from the Director’s Record, which the applicant has provided as a “Schedule A” on this motion, supports her arguments. The document indicates that from May 2007 to October 2007, FRO was operating under the March 2007 order. The respondent was not paying; there was an accrual of $702.00. In November 2007, FRO managed to debit $100, which reduced the amount owing to $602. Until December 1, 2007, FRO continued to operate under the first order.

[9] The second order of $239 shows up in the Financial Account in January 2008. The materials indicate that FRO adjusted the amount of retroactive payment owed. This is merely a mathematical exercise to determine if that is the case, as the document clearly shows that Mr. Rodriguez was not paying child support. The amount owing for child support continued to balloon. The balance was reduced to zero in July 2008, with four payments.

[10] Between July 2008 and March 1, 2017, the $239 a month child support payment had ballooned up to $23,183. Garnishments started in earnest thereafter followed by shorter periods of non-payments. Mr. Rodriguez believes the amount outstanding to be around $2,000 after garnishment of his taxes from CRA. Based on the admissible evidence before the court, the amount outstanding is less than $4,000. There was no evidence of double dipping as suggested by Mr. Rodriguez.

IV. Evidentiary issues

[11] Mr. Rodriguez says that the only reason he decided to bring the motion is because his circumstances have completely changed. On the evidence before the court, I am not satisfied that this is the case. On a motion to change, the moving party bears the burden of proof to adduce evidence to show there has been a material change which would justify the variation: see, Punzo, at para. 26; Ruffolo v. David, 2016 ONSC 754, 75 R.F.L. (7th) 16 (Div. Ct.); Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, at para. 55.

[12] The jurisprudence establishes that Mr. Rodriguez has the onus of showing, on the evidence, that there is a change in circumstances that was not contemplated by the parties when the initial order was made and that, if such a change had been known, “would likely have resulted in different terms”: L.M.P. v. L.S., 2011 SCC 64, 3 S.C.R. 775, at para. 32; Willick v. Willick, [1994] 3 S.C.R. 670, at p. 688; and L. v. S., 2022 ONCA 270, 471 D.L.R. (4th) 83, at para. 21. Mr. Rodriguez has failed to do so. The motion could be dismissed solely based on the deficient evidentiary record alone. Mr. Rodriguez’s affidavit does not comply with the Family Law Rules O. Reg. 114/99, is inadequate, and consists of documents and medical reports merely referred to, without more, merely annexed as exhibits.

[13] Clause 1 of r. 14(17) of the Family Law Rules provides that evidence on motions must be by way of affidavit or other admissible evidence in writing. With leave of the court, oral evidence may be presented: see r. 14.1 of the Family Law Rules. Leave was not requested or granted for the latter. A determination as to whether the court should decrease support can only be made based on “reliable, accurate and complete information”; Colucci v. Colucci, 2021 SCC 24, 2 S.C.R. 3, at para. 62.

[14] In Colucci, the Supreme Court of Canada indicated that the payor must disclose sufficient reliable evidence for the court to determine when and how far their income fell, and to ascertain whether the change was significant, long lasting, and not one of choice. Colucci involved a request by a payor spouse for a retroactive decrease of child support under the Federal Child Support Guidelines. The guidance from Canada’s highest court in Colucci is particularly trenchant in this case as Mr. Rodriguez seeks to establish a material change based on facts going back over 16 years in the absence of sworn affidavit evidence addressing the material facts.

[15] Subrule 14(18) deals with evidence on a motion given by an affidavit. The section reads:

Affidavit based on personal knowledge

(18) An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.

Affidavit based on other information

(19) The affidavit may also contain information that the person learned from someone else, but only if,

(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and

(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.

[16] Subrule 15(22) provides that:

A party who wants to ask the court to change a final order or agreement other than on the consent of the parties may, instead of completing Parts C and D of the motion to change (Form 15), use an affidavit containing evidence necessary to satisfy the court that it should make the order asked for and, in that case, the affidavit is deemed to be part of the motion to change.

[17] In her endorsement dated January 5, 2024, following a combined case conference, Kristjanson J. set the date for the hearing of the motion to change and devoted paragraphs 13 to 17 to meticulously review how the evidence, including expert evidence, discussed more fully below, should be put before the court. She outlined the different types of experts as participant experts and litigation experts. I will adopt her meticulous review of the law with respect to the evidence wherein she stated at paragraphs 13 to 17 as follows:

[13] Evidence on a Motion to Change is put before the Court by affidavit. All documents must be attached to the affidavit.

Medical Evidence

[14] The exception to attaching documents to an affidavit is expert evidence. If Mr. Rodriguez intends to argue that he is unable to work full-time at any job, he will need to call supporting medical evidence. A party who wishes to have his medical condition considered as a basis that he cannot work bears the onus to establish material disability.

[15] There are two kinds of experts in family law trials: participant experts and litigation experts. The Family Law Rules describe the experts in Family Law Rule 20.2(1) as follows:

“litigation expert” means a person engaged for the purposes of litigation to provide expert opinion evidence;

“participant expert” means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.

[16] It is likely that Mr. Rodriguez would be relying on the evidence of a family doctor and treating health professional like a physiotherapist – these are likely participant experts. Medical evidence should not be a note be attached to a party’s affidavit, like the present brief note. If Mr. Rodriguez is relying on medical evidence to support his claim that he is unable to work full-time, or make full-time medical wage income, he should obtain a report from a doctor, and any other treating health practitioners (physiotherapists, etc.) setting out the following information, and supported by clinical notes and records:

i. Diagnosis;

ii. Prognosis;

iii. Treatment plan;

iv. Compliance with the treatment plan;

v. Specific and detailed information connecting the medical condition to the inability to work. (for example, this person cannot work; at physical labour which requires lifting heavy leads);

vi. The health provider’s recommendations about accommodations that would allow the patient to work full-time or part-time (for example, can work 8-hour shifts if allowed two 15 minute stretch breaks)

[17] The expert (like a medical doctor) should prepare a report with this information, and attach it to the affidavit of the expert, and fill out an Acknowledgment of Expert Duty Form (Form 20.1). Mr. Rodriguez would then file the Doctor’s affidavit, report, and Acknowledgment of Expert Duty.

[18] In this case, Kristjanson J. put Mr. Rodriguez on notice that an affidavit was required, that exhibits were affixed to an affidavit, and advised Mr. Rodriguez of the nature and extent of the medical evidence required, the necessity of a medical report, and an affidavit from the medical expert. Mr. Rodriguez did not adhere to these directions. As indicated above, and addressed in more detail below, there are significant evidentiary issues on this motion. Mr. Rodriguez’s affidavit consists of 11 paragraphs in which he attaches documents as exhibits to his affidavit, merely referring to the document, without more. The documents include the following:

• “copy of my notice of assessment/tax information from 2007 to 2023”
• Copy of bank statements for three bank accounts
• “a copy of a letter Dr Leonardo Velastegui, outlining the results of my mental health evaluation back in Ecuador "psychologist evaluation 2014"
• “list of jobs searched, applied and the resume used in the applications,
• “list of job searched, applied and the resume used in the applications, “2019-_2024_JOBS_APPLIED", "JuanRodriguezresume2", "JuanRodriguez-Acting-Resume1"
• “Jobs held since Jan 1 2020 to current date, "JOBS_HELD_2020_2023".
• “letter from Doctor Gonsalez, "Doctors_letter"
• [l]etter from Rheumatology Expert Nancy Keesal.
• Proof of double dipping collections FRO collection orders
• “Letter from the John Howard Society, proving my efforts to clearing my High-School fight criminal record”
• Equifax credit report

[19] In short, there is no sworn admissible evidence by Mr. Rodriguez before the court. The affidavit also does not comply with the requirements of r. 14(19) of the Rules as he does not depose that he believes the information contained in the documents to be true. The jurisprudence establishes that exhibits annexed to an affidavit is not sworn evidence: see Katz v. Katz, 2014 ONCA 606, 50 R.F.L. (7th) 1; Sears v. Coristine, 2020 ONSC 7968. In Sears, at para. 32, the court stated:

Letters, text messages, and emails attached to affidavits are not sworn evidence. Before making an order, the efficacy of which will depend on the truth of the contents of a letter, a court should, at a minimum, require an affidavit from the author of the letter attesting to its contents.

[20] As discussed below, the medical reports and letter(s) from Mr. Rodriguez’s health care practitioners faces the same hurdle as the documents are simply annexed as exhibits to his affidavit.

[21] Where a document or report is tendered for the truth of its contents in relation to contested facts that are at the center of the dispute between the parties, the reliability and trustworthiness of the document takes on added importance, and the closer those facts come to the dispositive issue, the closer scrutiny the document or report deserves: Isakhani v. Al-Saffaf (2007), 2007 ONCA 539, 226 O.A.C. 184 at paras. 37-39 (C.A.); Ceho v Ceho, 2015 ONSC 5285, at para. 50. In this case, as noted by Kristjanson J., a report from a medical doctor addressing Mr. Rodriguez’s medical condition including a diagnosis, prognosis, treatment plans, compliance with treatment, as well as specific and detailed information connecting the medical condition to the inability to work, and recommendation was relevant on this motion. A determination of facts, on such evidence, if properly tendered, in favour of Mr. Rodriquez, could be dispositive of the issues raised on this motion.

[22] For her part, Ms. Soo-Chan has failed to file an affidavit addressing the merits of the motion; however, given the serious deficiencies in Mr. Rodriguez’s affidavit, which are far from merely technical defects, and the fact that he bears the onus on this motion, her failure to do so is not fatal. She filed a factum that is replete with “facts” not in evidence before the court. She did file a brief affidavit dealing with the s.7 expenses for which she was seeking reimbursement, a Financial Statement, tax returns (2020 to 2022) and pay stubs, without an affidavit.

V. Analysis

[23] The Form 15 Motion to Change was issued on March 31, 2023. The respondent father gave notice to the applicant mother that he was bringing a motion to change the final order of Timms J., dated November 20, 2007. In the Form, the respondent father provided information about his previous three years of income under Box 9 as follows:

• 2020 $24,588 Self-employment/Social services
• 2021 $26,060 Self-employment/Social services
• 2022 $11,200 Self-employment/Social services

i. Statutory framework

[24] In this case the parties were not married, and the Family Law Act applies.

[25] Under s. 37(2.1) of the Family Law Act, the court has jurisdiction to discharge, vary, or suspend a child support order prospectively or retroactively, if there has been a change in circumstances, as defined by the Guidelines, made under the Family Law Act, or evidence not previously available, is available. Under subsection 37(2.2), the court must make any order under subsection (2.1) in accordance with the Guidelines.

[26] The relevant provision of the Family Law Act, which applies in this case, reads:

Powers of court: child support

s.37 (2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

Application of child support guidelines

(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines.

[27] Section 14 of the Guidelines sets out the circumstances under which a variation of an order for support of a child may be made and defines what constitutes a change of circumstances for the purpose s.37 (2.2) (which deals with the application of the Guidelines). The section reads:

Circumstances for variation

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

15. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

16. In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support.

17. In the case of an order made under the Divorce Act (Canada) before May 1, 1997, the coming into force of section 15.1 of that Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

18. In the case of an order made under the Act, the coming into force of subsection 33 (11) of the Act.

[28] Under the Guidelines, the amount of child support generally does not turn on proof of their needs: S. (D.B.) v. G. (S.R.), 2006 SCC 37, 2 S.C.R. 231, at paras. 38, 44-48. Rather, the amount of support is based on the number of children being supported and the income of the payor parent indicated on their income tax return, unless that amount does not “fairly and fully” reflect the payor’s income: see Guidelines, s. 16; Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641, at para. 161.

[29] Section 19 of the Guidelines enumerates circumstances, which is not a closed list, under which the court may impute an income to the payor that is greater than the income indicated on their income tax return. One such circumstance is where the court determines that the payor is underemployed and can earn more money than their declared income, or where the court determines that the payor has not disclosed financial information. Section 19(1) of the Guidelines states:

19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the parent or spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the parent or spouse;

(f) the parent or spouse has failed to provide income information when under a legal obligation to do so;

(g) the parent or spouse unreasonably deducts expenses from income;

[30] In his factum, Mr. Rodriguez indicates that the child support orders established in 2007 were based on misrepresented income, resulting in accumulating arrears that do not accurately reflect his financial situation, and, in the result, warrants a reassessment. The court must reject Mr. Rodriguez’s assertion. First, Mr. Rodriguez has not presented any actual evidence of misrepresentation on the part of Ms. Soo-Chan. Second, the authority establishes that the court has the discretion to impute income under s. 19 of the Guidelines in circumstances that are enumerated or circumstances which are analogous and would be consistent with legislative intent. The list is not closed: see Trang, at para. 48; Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196 (C.A.). The court presumes there was sufficient evidence before Timms J. to base a determination of the quantum of income that as imputed to Mr. Rodriguez.

[31] In Drygala v. Pauli (2002), 61 O.R. (3d) 711, (Ont. C.A.), Gillese J.A., speaking for the Court, stated, at para. 32:

Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this legal obligation, a parent must earn what he or she is capable of earning. [Emphasis added]

[32] Ms. Soo-Chan says that Mr. Rodriguez is underemployed or hiding income. She submits that Mr. Rodriguez has made a choice to be self-employed. She says that he has not provided proper income information that he has received from film entertainment industry gigs along with professional fees, commission, tips, income/appropriate expenses. She says that Mr. Rodriguez’s recent job applications for housekeeping jobs “defeats the purpose of his so-called medical injury”.

[33] Parents must earn what they can earn to meet their child support obligations. The Guidelines permit the court to impute income to a parent if the court finds that a parent is intentionally underemployed or if the parent is earning less than they are capable of earning, having regard to all the circumstances: Drygala, at para. 45. That a party is earning less than they are capable of earning will suffice: Evans v. Evans, 2023 ONSC 3919, at para. 77. Mr. Rodriguez’s submission is that he has been working as an “extra.” He enjoys acting and wants to pursue this career. Thus far, his roles have been limited to that of an “extra”.

[34] The principles that govern the imputation of retroactive or prospective child support were described by Madsen J. (as she then was), in Evans v. Gravely (2000), 14 R.F.L. (5th) 74 (Ont. S.C.), at para. 77. A parent cannot pursue an improvident career path at the expense of the child: see, Evans, at para. 10. There is no requirement of bad faith or intention to evade support obligations inherent in intentional underemployment: Drygala, at paras. 24-37; Lavie v. Lavie, 2018 ONCA 10, 8 R.F.L. (8th) 14, at paras. 24-26. A payor parent may take jobs which generate less income as long as the decision is reasonable: see Smith v. Smith, 2012 ONSC 1116, at para. 81. A support payor cannot select a job merely because it suits his or her purposes. When an employment decision results in a significant reduction of child support, it must be justified in a compelling way: see Riel v. Holland (2003), 67 O.R. (3d) 417, at para. 23. Mr. Rodriguez has not presented any evidence to show that his job as an “extra” is reasonable in all the circumstances.

[35] Generally, in the absence of any evidence as to what the payor earns, the court may impute income to the payor equivalent to the provincial minimum wage: see de Pimentel v. Rodriguez, 2024 ONSC 2844, 2 R.F.L. (9th) 109; Rose v. Baylis, 2018 ONCJ 230, at para 79-93. There must be evidence to impute income above the provincial minimum wage: Carmichael v. Abel, 2022 ONSC 7034, at para. 50; Dassin v. Perpignan, 2021 ONSC 1066, at para. 8; Drygala, at paras. 43-52; and de Pimentel. In this case, Mr. Rodriguez has paid the support based on the same imputed income for almost 17 years, and the imputed income is in fact below the current provincial minimum wage. In her factum, Ms. Soo-Chan is seeking an increase to the current provincial minimum but has not brought a cross motion.

[36] The court has held that an application for a variation order is not an appeal of the original order: see Gray v. Rizzi, 2016 ONCA 152, 129 O.R. (3d) 201, at para. 26, citing to Willick v. Willick, [1994] 3 S.C.R. 670, at p. 11. The correctness of the previous order must not be reviewed during the variation proceeding: Willick, at p.11:

[I]n a variation proceeding, it must be assumed that, at the time it was made, the original child support order or the previous variation order accurately assessed the needs of the children having regard to the means of the parents. As such, the correctness of the previous order must not be reviewed during the variation proceeding. The previous order will not be departed from lightly and will only be varied if the requirements under s. 17(4) of the Divorce Act (Canada) are properly satisfied.

[37] Where no appeal is taken from an order determining the method and amount of income to be imputed, the issue is res judicata: see Bemrose v. Fetter, 2007 ONCA 637, 228 O.A.C. 311, at para. 95; Nejatie v. Signore, 2014 ONCJ 653. In this case, Mr. Rodriguez did not appeal. The jurisprudence establishes that imputation is a fact, not an estimate or a guess: see Trang, at para. 51. Where income has been imputed, a support payor will need to demonstrate a material change since the making of the imputation order: see Ruffolo, at para. 20.

ii. No change in circumstances

[38] Turning to Mr. Rodriguez’s reason for seeking the variation, those reasons were delivered during oral submissions, given the problems with his affidavit identified above. Mr. Rodriguez indicates in his factum that the court should consider his physical limitations resulting from a lower back injury sustained in 2000 in its determination of his child support obligations. He indicates that he has had significant physical limitations since the lower back injury, which have hindered his ability to engage in labour-intensive work and secure stable employment. Again, there is no affidavit evidence from Mr. Rodriguez on his lower back injury, his physical limitations, or the impact on his ability to engage in physical or any occupation.

[39] Ms. Soo-Chan submits, in her factum, that Mr. Rodriguez has not provided medical reports that, among other things, show his restrictions/limitations, accommodations or that he is unable to work at all. She submits that there are no medical reports indicating, “suitable treatment commenced and offered by a physiotherapist/ occupational therapist/ primary physician on file.”

[40] Aside from the evidentiary issues, the facts relied upon by Mr. Rodriguez in support of the motion to change existed at the time the support orders were made in 2010. Mr. Rodriguez has also raised, in oral submissions, the fact that he is attempting to expunge his Criminal Record. It is not clear to the court the purpose of the letter, without any letterhead, that is annexed to Mr. Rodriguez’s affidavit. In her factum, Ms. Soo-Chan noted that Mr. Rodriguez has not shown his Record Suspension application from the Parole Board and is relying on a medical injury that occurred 23 years ago, and before their son’s birth. The Supreme Court pointed out in Willick that a change known at the relevant time cannot be relied on as the basis for variation: at para. 20.

[41] The court must determine whether there has been a “material” change of circumstances as provided for in the Guidelines: see Willick, at p. 12; Punzo, at para. 43. The terms of the prior order are presumed to comply with the objectives of the statute at the time the order was made: L.M.P., at para 39. In Willick, the court set out a framework for the court to employ in determining whether a change is justified. At p. 12, the Supreme Court directs that the court must “determine first, whether the conditions for variation exist,” and if the court finds that a material change in circumstances exist, the court must determine “what variation of the existing order ought to be made in light of the change in circumstances.”

[42] A material change in circumstances means circumstances not contemplated by the parties at the time the initial order was made and that, if such a change had been known, “would likely have resulted in different terms”: L.M.P., at paras. 32, 35, citing Willick, p. 12; L.v. S., at para. 20.

[43] Neither the FLA or the Guidelines contain the word “material,” but rather, the case law has incorporated the term as part of the test to be satisfied by the moving party.

[44] The Supreme Court has directed that the focus of the analysis is twofold: the analysis should look at the prior order, and the circumstances in which it was made: L.M.P., at para. 33. Moreover, as the court reiterated, it is presumed that the judge who granted the initial order knew and applied the law, and the order met the objectives of the statute: L.M.P., at para. 33. In the case before the court, the support order at issue was based on imputed income to Mr. Rodriguez. Income was imputed to Mr. Rodriguez at the original uncontested trial because he did not participate in the trial, though the reasons are not known.

[45] Mr. Rodriguez’s asserted inability to work for medical reasons is not supported by the evidence. Ms. Soo-Chan submits, in her factum, that Mr. Rodriguez has not provided medical reports that, among other things, show his restrictions/limitations, accommodations or that he is unable to work at all. She submits that there are no medical reports indicating, “suitable treatment commenced and offered by a physiotherapist/ occupational therapist/ primary physician on file.” I agree. There is no report from any medical doctor nor any affidavit from a medical doctor setting out any medical diagnoses and opining that Mr. Rodriguez is not able to work because of his medical condition, with accommodation, either doing physical labour or any other work, either full-time or part-time. There is no admissible medical or other evidence before the court indicating an aggravation or progression of any problems Mr. Rodriguez may have with his lower back, and certainly no admissible evidence to suggest that this would affect his ability to work at physical jobs, or those types of jobs with accommodation, or jobs which were not physical in nature.

[46] Mr. Rodriguez is capable of working. He has been working. He says he works as an “extra” in the film industry. In his materials he calls this a “gig” employment, a term he repeated in his submissions. When a person decides to start a business in which the person has no experience, it may result in a finding that the individual is intentionally underemployed: Evans v. Gravely, at paras. 10-11; Dang v. Hornby (2006), 33 R.F.L. (6th) 113 (Ont. S.C.), at para. 24; Ruszczak v. Scherbluck, 2012 ONCJ 14, at para. 28; Charron v. Carriere, 2016 ONSC 4719, at para. 58.

[47] There is no sworn evidence, admissible or otherwise, before the court setting out Mr. Rodriguez’s education and training in acting. Mr. Rodriguez’s resumé, annexed to his affidavit, which covers the period of 2001 to 2017, does not appear to include any “physical” or “physical labour” jobs. The positions he reportedly held included the following: customer service (cashier); graphic artist; “3D Generalist”; “2D Artist”; and a script writer. The list of jobs annexed to his affidavit cover the period of January 2020 to August 2023, and are all related to the film industry.

[48] First, Dr. Leonardo’s report is not admissible evidence, as the letter is in Spanish. Under s. 125(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, the official languages of the courts are English and French. Pursuant to paragraph (b) of s.125(2), the Courts of Justice Act, provides as follows:

(b) documents filed in courts shall be in the English language or shall be accompanied by a translation of the document into the English language certified by affidavit of the translator.

[49] Second, the letter is appended as an exhibit to the affidavit of Mr. Rodriguez. There is no affidavit from Dr. Leonardo, and, in the result, it is not properly before the court. He was put on notice by Kristjanson J. that if a payor is resisting imputation of income for medical reasons, then the payor must provide medical evidence confirming the diagnosis, prognosis, treatment plan and level of compliance, along with specific information connecting the medical condition to the ability to work.

[50] Third, it is not clear why the letter is before the court. Mr. Rodriguez does not submit that he is unable to work because of any mental health impairment. The letter appears to outline the results of Dr. Leonardo’s mental health evaluation completed in Ecuador. It appears to indicate that Mr. Rodriguez was receiving psychotherapy and did not show any psychological disturbance or any consumption of psychotropic substances. There is no opinion from Dr. Leonardo with respect to Mr. Rodriguez’s ability to work full-time or part-time or inability to do so because of any emotional or psychological issues. Finally, the letter is dated over ten years ago. In my view, these issues are not merely technical deficiencies; they go to the admissibility of the letter. I would therefore decline to consider Dr. Leonardo’s letter.

[51] Mr. Rodriguez has also annexed the report of Dr. Nancy Kessal, dated April 3, 2024, as an exhibit to his affidavit. Dr. Kessal has signed an Acknowledgement of Expert’s Duty (Form 20.2) under the Family Law Rules, which is part of the same exhibit. There is no affidavit from Dr. Kessal, and the report is not properly before the court. In my view, even if the report had been properly tendered as evidence, it does not support Mr. Rodriguez’s position that he is not able to work due to his history of back pain or lower back problems. The report is directed to Dr. Armando Gonzalez, who had apparently asked Dr. Kessal to see Mr. Rodriguez about his low back pain. She noted:

About 2 months ago, he had neck pain radiating down his right arm that he noticed first when he was sleeping. That lasted for 6 weeks and has resolved. He has no other musculoskeletal complaints [Emphasis added].

[52] In reviewing Mr. Rodriguez’s history, Dr. Kessal touched on Mr. Rodriguez’s prior history of low back complaints. As Mr. Rodriguez has no sworn evidence before the court, and only made submissions at the hearing on his pre-existing back history, the report is based on hearsay and dovetails oral submissions made by Mr. Rodriguez. Dr. Kessal noted that his low back pain is said to have started in his twenties, after he lifted a heavy package at his work at A&P. She noted that Mr. Rodriguez says that he has “ongoing intermittent low back pain” 15-20 days per month. He reportedly described his symptoms as “stable overall for the past 5 years” and he described them to Dr. Kessal as manageable.

[53] Dr. Kessal also noted that Mr. Rodriguez “has not taken any other medication for his pain and never went to physiotherapy.” She stated that Mr. Rodriguez had a long-standing history of “mechanical much more than inflammatory low back pain” and had underlying significant degenerative disc disease. Absent from Dr. Kesssal’s report, is any opinion with respect to Mr. Rodriguez’s ability to work. Dr. Kessal does not indicate that Mr. Rodriguez’s low back condition results in his inability to work or any restriction on his ability to work, nor that he would be unable to work despite accommodations, if any, recommended by health care practitioners.

[54] Mr. Rodriguez also annexed to his affidavit what is said to be a note dated August 30, 2023, from Dr. Gonzalez, which contains spelling and grammatical errors. There is no affidavit from the family doctor and no agreement between the parties on the authenticity of the note. The note indicates:

[55] The note does not indicate that because of the degenerative changes in his back, Mr. Rodriguez is not able to work at any job, or could not be accommodated.

[56] Even if some of the evidence had been admissible, I am not satisfied on the medical or other material before the court, that there has been a change, material or otherwise, in Mr. Rodriguez’s circumstances since the time the child support orders, or any of them, were made in 2007.

[57] The orders of Timms J. were made seven years after Mr. Rodriguez’s back injury. Accordingly, there is no material change in circumstances since the 2007 child support orders. Mr. Rodriguez is not able to demonstrate that there was material change in circumstances since the last child support order was made in November 2007.

iii. No new evidence

[58] In his motion to change form, Mr. Rodriguez indicates that the court got it wrong from the beginning. To support his position, he lists in the notice figures which he is asserting represents his income over the past seventeen years, as follows:

[59] In her January 2024 endorsement, Kristjanson J. directed Mr. Rodriguez to produce income information tax returns and bank account information for all jobs applied for and held by him for the period which he would be seeking recission of arrears or child support. Justice Kristjanson also directed him to produce his complete income tax returns, with all information slips and schedules, for tax years 2020, 2021, and 2022, and within 5 days of filing for 2023”. He has not complied with this direction.

[60] In his affidavit, Mr. Rodriguez refers to his “tax notice of assessment/tax information from 2007 to 2023”, being annexed; however, no information is disclosed for 2007 to 2009. Contrary to the direction of Kristjanson J., he does not include his complete tax returns. None of the “Income Tax Information” summary, which he has provided, includes the schedules that he was directed to produce. This of course is significant as he has been self-employed in the past, as the applicant, Ms. Soo-Chan, has pointed out. She also asserted that Mr. Rodriquez has used different names and has filed his tax returns years afterwards in some cases. In fact, it appears he filed his taxes for the period 2012 to 2016 in 2017, and for the period 2018 to 2020 in 2022. As for the different names that he is alleged to go by, I will revisit this issue below.

[61] In Gray v. Rizzi, 2016 ONCA 152, at para. 36, the Court of Appeal rejected the notion that “‘evidence not available on the previous hearing’ could include financial information that was ‘not available’ because of a party's deliberate failure to meet his disclosure obligations.” Speaking for the Court, Brown J.A. observed, at para. 34, that a party who ignores their financial disclosure “assumes the risk that a judge ultimately may refuse to tolerate any further delay and proceed to grant a final support order based on imputed, rather than declared, income.”

[62] If Mr. Rodriguez’s position were to be accepted with the belated attempt to disclose his true income going back to the original order of Timms J. in 2007, that is what occurred here. As noted by the Court of Appeal in Gray, a party who fails to make disclosure cannot later make financial disclosure and argue that the late disclosure constitutes a material change in circumstances. Brown J.A. underlined the dangers of permitting late financial disclosure on a motion to change, and quoted, with approval, the comments made by Pazaratz J. in Trang, wherein that failure had attendant ramifications: the imputation of income to the moving party; the inability of the moving party to rely on that evidence on the motion to change. Justice Brown noted, at para. 34:

To allow a party who ignores his or her financial disclosure obligations to later satisfy the requirement and argue that the late disclosure constitutes a material change in circumstances would eviscerate the financial disclosure regime. The practical dangers of such an approach were well described by Pazaratz J. in Trang v. Trang, [2013] O.J. No. 1618, 2013 ONSC 1980, 29 R.F.L. (7th) 364 (S.C.J.), at paras. 53, 54 and 59, discussing motions to change where the final order imputed income to the payor:

If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications -- as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.

[63] I am therefore not persuaded that there is evidence filed on this motion that was not previously available, which warrants a variation of the child support order.

iv. Relief from retroactive payments

[64] A payor's request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears: Gray, at para. 58.

[65] In Colucci, the Supreme Court dealt with the issue of a request for retroactive decrease in child support and set out the governing framework governing applications by the payer party for recission of child support arrears “based on current and ongoing inability to pay.” The framework for these applications is set out in para. 113 of Colucci as follows:

(1) The payor must meet the threshold of establishing a past material change in circumstances. 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.

(2) 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.

[66] A party who seeks a retroactive reduction in child support or rescission of arrears, must give “effective notice”: see Gray, at para. 62; Colucci, at paras 88, 82, 86-87. In Colucci, Martin J. noted, at para. 113(2) that “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.” Canada’s highest court was restating guidelines provided by Ontario’s highest court in Gray, at para. 62, wherein the Court adopted the comments made by Chappel J. in Corcios v. Burgos, 2011 ONSC 3326 (S.C.J.), at para. 55, where she noted that effective notice required “reasonable proof to support the claim for a change to the [order], so that the recipient can independently assess the situation in a meaningful way and respond appropriately.”

[67] The court will generally not decrease child support more than three years before the date the motion to change was started. If there was no communication or financial disclosure before the motion to change was commenced, any reduction may be to the date of the motion to change, which is the date of formal notice. Mr. Rodriguez has not filed his full tax return for 2023, nor has he established that he would not be able to pay the arrears in the future. In the result, the court need not determine the date of effective notice, or whether the court ought to depart from the presumptive date of retroactivity, in the circumstances of this case.

[68] While I am not satisfied that Mr. Rodriguez meets the threshold test in Colucci, to warrant a retroactive variation or rescission, if I am wrong, the earliest date that remotely qualifies as the “effective notice”, is the date of service of Mr. Rodriguez’s affidavit. No documents accompanied his Form 13 Notice of Change (March 31, 2023), and he made no documentary disclosure before the order of Kristjanson J. in January 2024. Mr. Rodriguez made some financial disclosure with the delivery of his April 2024 affidavit. There is of course an argument that the “effective notice” date has not been triggered as Mr. Rodriguez since he has not fully complied with the order of Kristjanson J. and has provided no explanation for not doing so.

v. Party may not rely on late disclosure to vary child support

[69] The applicant indicates in her materials that Mr. Rodriguez has not provided financial disclosure in the past 17 years. It is not open to a litigant to fail to produce financial information, run the risk that a trial judge will impute income, and then come back to a new court and suggest that the imputed income was wrong: see Ruffolo; see also Trang, at paras. 50-55.

[70] The case law also establishes that the moving party cannot ask the court to make findings on income that are contrary to the recipient’s interests “while at the same time shielding information that is relevant to the determination of their income behind a protective wall”: see Templeton v. Nuttall, 2018 ONSC 815, at para. 67; Tougher v. Tougher, 1999 ABQB 552, at paras. 14‑15. As will be addressed below, Mr. Rodriguez “shielded” financial information from the applicant for over 16 years.

[71] Ms. Soo-Chan submits that Mr. Rodriguez has not made financial disclosure until recently. Mr. Rodriguez in fact noted that he did not produce full financial disclosure or advise Ms. Soo-Chan of his intention to reduce child support and arrears until he started the motion to change.

[72] The materials indicate that he repeatedly disregarded his obligation to make financial disclosure and furnish the applicant with details of his employment as contemplated by the order of Timms J. made almost 14 years ago. Both the March 12, 2007, and November 20, 2007 orders of Timms J. required the respondent to “notify the applicant of his obtaining any employment and upon such that he provides the applicant with the details of each employment.” Over the years, he has not done so. Undoubtedly, the extensive disclosure order of Kristjanson J. on January 15, 2024, which required Mr. Rodriguez to produce his complete income tax returns, with all schedules, bank statements, job searches, CV used to obtain jobs, is the reason for the disclosure, such as it is, by Mr. Rodriguez only after he initiated this motion to change.

[73] The matter was referred by the DRO to a case conference. The nature of the evidence that Mr. Rodriguez would require was dealt with by several judges at case conferences. In her endorsement dated October 6, 2023, following the first case conference, Brownstone J. noted: “We discussed the issue of imputed income, and the kind of evidence the father would need to bring to show he is, and has been, unable to work.”

[74] The Continuing Record includes pre-motion orders related to disclosure. On May 30, 2023, the parties participated in the Dispute Resolution (DRO) Program process and the following disclosure order was made:

For example the Applicant is to provide her T1 tax returns for the last 3 years.

Respondent needs to supply his T1 tax returns for 2007-2022, his medical records showing his inability to work, confirmation of all acting jobs he has done to date and her current social assistance amount.

[75] Following a case conference before Kristjanson J. in January 2024, almost ten months after the motion to change was commenced, Kristjanson J. made the following disclosure orders with respect to Mr. Rodriguez:

Mr. Rodriguez is ordered to produce the following documents to Ms. Soo-Chan:

1. Within 45 days, his complete income tax returns, with all information slips and schedules, for tax years 2020, 2021, and 2022, and within 5 days of filing for 2023.
2. Within 45 days, his monthly bank account statements January 1, 2020 to present, and ongoing to the Motion to Change hearing.
3. Within 45 days, a free Equifax Credit Report.
4. Any report from a medical doctor or health practitioner upon which he intends to rely on the Motion to Change, within five days of being provided to Mr. Rodriguez, and no later than May 1, 2024.5. For May 1, 2024, an updated Form 13 Financial Statement.
5. Within 45 days, a monthly list of all job searches (jobs applied for, CV used for application, responses from employers) for the period January 1, 2020 to present, and continuing to the Motion to Change.
6. Within 45 days, a list of all jobs held from January 1, 2020 to present, with the dates of the jobs and the types of jobs, together with reasons for termination, and whether social assistance (EI, Ontario Works) was received in the interim between jobs, and if so, how much.
7. If Mr. Rodriguez intends to seek recission of arrears/child support prior to January 1, 2020, then all income information (tax returns, bank account information), and all jobs applied for/jobs held for the period during which he seeks adjustment.
8. For May 1, an updated Certificate of Financial Disclosure, Form 13A (see Family Law Forms at Family Law Rules Forms | Ontario Court Services (ontariocourtforms.on.ca))

[76] Similarly, with respect to Ms. Soo-Chan, Kristjanson J. made an order requiring her to produce proof of payment of expenses for which she is seeking reimbursement, among other things, as well as an updated Financial Statement.

vi. Conduct of the child support payor

[77] If I am wrong, given Mr. Rodriguez’s non-disclosure of financial information which exists even to date, this is not a case where the court ought to exercise its discretion in his favour, as to do so would be to condone his repeated breach of the orders for annual financial disclosure. Mr. Rodriguez failed to provide financial disclosure to Ms. Soo-Chan for almost 15 years. There is no evidence before the court that he has produced records from his various self-employment or professional income strewn throughout his tax summaries over the years. Financial non-disclosure by the moving party should not be rewarded; such non-disclosure should not result in a variation of support.

[78] The applicant, Ms. Soo-Chan, says Mr. Rodriguez is currently in arrears of child support in the amount of $3,865.91. The court has indicated that a payor who has not complied with an existing support order cannot claim reliance on that order in managing their financial affairs: Gray, at para. 51. However, unusual circumstances which permanently diminish the payor’s earning capacity, such as a catastrophic injury, may be an exception: Gray at para. 53.

vii. Hardship to the recipient

[79] In his Form 15 Motion to Change, Mr. Rodriguez indicates that he was requesting that the court recalculate the monthly child support payments going back to the initial order in 2007.

[80] In his motion to change, Mr. Rodriguez indicates that he has paid $15,362.50 for the arrears on August 1, 2021. He seeks reimbursement “for any amounts that I may have over payed (sic), considering FRO continues to garnish my wages until the present day, March 37, 2023.”

[81] On the other hand, Ms. Soo-Chan says that she has been solely responsible for the extraordinary expenses and supporting their son. Mr. Rodriguez does not dispute these assertions. The child support amount has not varied for 17 years and is currently below the provincial minimum. The order sought by Mr. Rodriguez may result in repayment by Ms. Soo-Chan and cause hardship to her.

VI. S. 7 expenses as claimed by Ms. Soo-Chan

[82] Ms. Soo-Chan’s affidavit merely refers to a chart of s.7 expenses, which suffers from the same evidentiary issues. There is also no cross-motion by Ms. Soo-Chan regarding s.7 expenses, and in the result, the court makes no determination on the issue.

VII. Different names used by respondent

[83] During oral submissions, the applicant raised the issue of the respondent going by different names, which include Juan Pablo Rodriguez, Juan Rodriguez, and Juan P. Rodriguez-Torres. The documents filed by the respondent does bear this out. However, Mr. Rodriguez denies that he uses different names and submits that he uses his own name. In the absence of affidavit evidence from either party, the court can draw no conclusion on the use by Mr. Rodriguez of variations of his name. At first blush, there appears nothing untoward in him doing so.

VIII. Conclusion

[84] Mr. Rodriguez has not satisfied the burden of showing that there has been a material change in circumstances, since the order was made, to vary child support, nor any new evidence, which would warrant a variation.

[85] In her factum, Ms. Soo-Chan asked the court to determine an increased imputed income using the current Ontario annual minimum wage of $16.55 per hour ($34,424.00), and is asking the court to determine the parties’ proportionate share of section 7 and extraordinary expenses in relation to the child. The request is not properly before the court and Mr. Rodriguez has not responded to the request.

[86] I would direct that case conference be convened to address the section 7 expenses and the request by the applicant, Ms. Soo-Chan, for an adjustment of the quantum of child support, and, if necessary, the necessity of brining the appropriate motion, on proper notice to the respondent.

IX. Costs

[87] As the parties are both self-represented, I am not inclined to award any costs. However, the respondent on this motion to change, Ms. Soo-Chan, wishes to seek her costs, I am prepared to consider costs submissions to be delivered by her, limited two pages, double spaced, and any supporting evidence, limited to two pages, within 15 days of this endorsement, and by the respondent, 15 days thereafter (with the same restrictions).

[88] The submissions must include actual evidence of any lost opportunity to earn an income for completing work as a resulting of completing work (excluding attendances at court) that would have normally been completing by a lawyer. There shall be no reply submissions.

A.P. Ramsay J. Date: September 3, 2024