COURT FILE NO.: FS-21-107-00 DATE: 2024-06-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Georgette Mary Abraham, Applicant T. Hasan, for the Applicant

- and -

Rheal Rolland Levesque, Respondent R. Levesque, Self-represented

HEARD: February 20, 21 and 22, 2024 at Thunder Bay, Ontario, by Zoom Mr. Justice J.S. Fregeau

Reasons On Application

INTRODUCTION

[1] In this Divorce Application, issued June 9, 2021, the applicant, Georgette Abraham (“Ms. Abraham”) seeks a Final Order requiring the respondent, Rheal Levesque (“Mr. Levesque”) to pay her child support in accordance with the Federal Child Support Guidelines (the “CSG’s”) for one child, for the period February 2011 to June 2021, fixed in the amount of $74,093.

BACKGROUND

[2] Ms. Abraham and Mr. Levesque were married on November 12, 1999, and separated in 2008. The parties have one child of the marriage, Harley Levesque (“Harley”), born December 11, 2000. Harley was 20 years old when this application was issued, June 9, 2021, and he graduated from high school on June 25, 2021.

[3] When the parties separated in 2008, Harley was eight years old. Following separation, Mr. Levesque travelled widely for employment purposes and lived in various locations. It is not seriously in dispute that Harley resided primarily with Ms. Abraham following separation and until he graduated from high school in June 2021. Ms. Abraham does not dispute that Harley would spend periods of his summer vacations living with Mr. Levesque. However, the periods of time that Harley resided with his father were sporadic and irregular.

[4] Following separation, Mr. Levesque paid child support to Ms. Abraham in the amount of $400 to $450 per month, a quantum determined unilaterally by him and accepted by Ms. Abraham. Ms. Abraham alleges that Mr. Levesque terminated his monthly child support payments in February 2011. Mr. Levesque alleges that he continued paying child support to Ms. Abraham in the years following 2011, firstly by transfers/deposits into Ms. Abraham’s bank account, and then by direct payments to Harley.

[5] At trial, the parties’ direct evidence was presented by affidavit or “will say” statements, the latter with leave of the court. The deponents of the affidavits and the authors of the will say statements were then cross-examined at trial on their affidavit evidence.

THE CASE FOR MS. ABRAHAM

[6] Ms. Abraham initiated an Ontario Court of Justice (“OCJ”) Application on January 4, 2010, in which she sought custody of Harley and a restraining order against Mr. Levesque. In this application, Ms. Abraham alleged that Mr. Levesque refused to return Harley to her “after exercising Christmas access”. She further alleged, in support of her claim for a restraining order, that she was afraid of Mr. Levesque “after suffering abuse from him over the years”. On the current application, Ms. Abraham deposes that she did not ask for child support in her 2010 OCJ application because Mr. Levesque was voluntarily paying her child support at the time, albeit below the guidelines.

[7] Ms. Abraham also brought a Motion without notice, returnable January 4, 2010, seeking temporary relief consistent with her application. On January 4, 2010, the OCJ granted Ms. Abraham interim custody of Harley, issued a restraining order against Mr. Levesque and adjourned the matter to February 11, 2010. Mr. Levesque was thereafter served and appeared in court on February 11, 2010.

[8] On February 11, 2010, on consent, the court ordered that Ms. Abraham and Mr. Levesque were to have joint custody of Harley, with Harley having his primary residence with Ms. Abraham, and Mr. Levesque being entitled to reasonable access on reasonable notice to Ms. Abraham. Ms. Abraham again deposes that she did not pursue an order for child support in the 2010 application because she and Mr. Levesque “agreed that he would pay me $400 per month in child support [and] I was getting by with the support that was provided to me by the Respondent, although it was inconsistent.”

[9] Ms. Abraham deposes that in 2011, “the Respondent completely stopped paying child support” and that she “called the Respondent a countless number of times asking him for support. The Respondent would call me derogatory names and would state that he would never help financially as I filed a Restraining Order against him.”

[10] Mr. Levesque initiated a Superior Court of Justice application against Ms. Abraham in 2011. The record on this application does not clearly disclose the relief sought by Mr. Levesque in the 2011 application. He apparently initiated the 2011 application to have the restraining order rescinded to allow him to spend time with Harley. Ms. Abraham retained counsel and filed an Answer/Claim in which she requested, among other things, child support for Harley. Ms. Abraham deposes that she was financially unable to pursue this litigation. It was administratively dismissed on January 31, 2013.

[11] Ms. Abraham deposes that she was forced to apply for Ontario Works in 2015/2016 when she was demoted to “casual employee” status at her place of employment as a result of a more senior employee returning to work. Ontario Works inquired as to why Mr. Levesque was not receiving child support from Harley’s father. Ontario Works assisted Ms. Abraham with her Legal Aid application and she met with Legal Aid counsel James Wilcox on February 12, 2016. The February 12, 2016, Legal Aid Ontario Family Referral form indicates that the issues discussed included “family violence” and “child support”. Ms. Abraham deposes that she then obtained full-time employment in March 2016, such that she no longer qualified for Legal Aid. She also could not afford to privately retain a lawyer to pursue child support from Mr. Levesque.

[12] Ms. Abraham deposes that she obtained more remunerative full-time employment in 2017 and began saving money to hire a lawyer, which she was able to do in 2020 and which ultimately resulted in this application being issued in 2021.

[13] Ms. Abraham also deposes that she asked Mr. Levesque directly on many occasions between 2011 and 2020 “for child support and financial disclosure” after he stopped paying child support in 2011. Ms. Abraham alleges that Mr. Levesque threatened to “break” her financially if she pursued child support from him.

[14] Ms. Abraham deposes that when Mr. Levesque was served with the current application, he immediately texted Harley. A copy of this undated text is attached as an exhibit to Ms. Abraham’s affidavit. The relevant portions are as follows:

• And [your mother] wants child support
• I’m gonna contest everything and make her spend money
• I’ll drag it out in court till she’s broke as fuck
• I’ll definitely give her the divorce 1000%... but that’s all she’s getting out of me
• I’ll fight her all the way except on the divorce part… she can’t afford to fight me in court…
• You should let her know before she goes broke.
• It will cost her thousands and thousands… and I’ll make sure it does.

[15] Ms. Abraham deposes that Mr. Levesque was physically and emotionally abusive to her during their marriage and that his abusive treatment of her was one reason why she did not pursue litigation against him. Ms. Abraham’s affidavit provides details of numerous incidents of Mr. Levesque physically intimidating and abusing her during the time they lived together. The most serious of these was in 2007, when Ms. Abraham deposes that Mr. Levesque grabbed her around the throat and started choking her in front of Harley, who was six or seven years old at the time.

[16] Ms. Abraham deposes that she continued to fear Mr. Levesque after they commenced their separation. She found him to be intimidating and she feared that if she pursued him for child support, he would harm her or her family.

[17] Attached as an exhibit to Ms. Abraham’s affidavit is a copy of Harley’s Ontario Secondary School Diploma, dated June 25, 2021.

[18] When cross-examining Ms. Abraham, Mr. Levesque suggested to her that he had provided extensive child support to her after 2011, by way of bank transfers done by third parties at his request. Ms. Abraham denied that anyone sent her child support on behalf of Mr. Levesque.

[19] In his direct evidence affidavit, Harley acknowledges that after his parents separated in 2008, he would reside with his dad occasionally during summers and “once in a while at Christmas.” However, he considered his primary home to be with his mother.

[20] Harley further acknowledges that his father would give him money “from time-to-time. I would receive anywhere between $20 to $50 a few times a year.” Harley also deposes that when he was older and asked his dad for financial assistance, he would be given $100 payments, but that he was expected to, and did, repay his father from summer earnings.

[21] When cross-examined by Mr. Levesque, Harley acknowledged that his father did send him money when he asked for it and that he helped him buy a vehicle after he graduated from high school. Harley also testified on cross-examination that his father told him that he would not pay his mom “a cent of child support.”

[22] Shyanne Nolan, Ms. Abraham’s oldest daughter from a previous relationship, provided evidence on this application. Ms. Nolan is 32 years old and is a registered social worker. She moved out of her mother’s home in 2012. Ms. Nolan deposes that Ms. Abraham was Harley’s primary parent after the parties separated. She further deposes that she recalls her mother trying to get financial help from Mr. Levesque after separation “to no avail” and that her mother was financially unable to pursue family litigation. Ms. Nolan deposes that in the fall of 2009, she witnessed Mr. Levesque “making statements to the effect that [he] had no intention to provide financial assistance for Harley.”

[23] On consent, counsel for Ms. Abraham filed a document entitled Respondent’s Income by Year and DivorceMate Support Calculations. This document includes CRA documentation provided to the applicant by the respondent as a result of this litigation confirming Mr. Levesque’s total income for the years 2011-2021 and the corresponding DivorceMate CSG’s calculations for one child for each of those years.

THE CASE FOR MR. LEVESQUE

[24] As noted, due to the respondent being self-represented, “will say” statements from the respondent’s witnesses were accepted as direct evidence in lieu of affidavits.

[25] Mr. Levesque’s will say statement alleges that he paid Ms. Abraham $500 bi-weekly, by way of direct deposit to her RBC account in the period of time following their 2008 separation. He further alleges that due to Ms. Abraham’s “lack of stability and addictions”, Harley resided with him and others throughout his life and that he stopped “giving” money directly to Ms. Abraham “as she would use said funds towards her addictions.”

[26] Mr. Levesque also alleges that he set up a bank account for Harley once he was in high school and that he deposited money for Harley into that account. Mr. Levesque also states that he has “paid for all of Harley’s extracurricular activities.”

[27] In his direct evidence at trial, Mr. Levesque testified that after the period when he directly deposited child support into Ms. Abraham’s RBC account following their 2008 separation, and due to his irregular work hours, he began to have Wendy Langlois or Angie DeCiccio make these deposits on his behalf. Mr. Levesque testified that these deposits were initially $500 per week and then “$2,000 a month for a few years… until probably 2013 or 2014… reduced to $500 per month probably in 2012 or 2013.”

[28] According to Mr. Levesque, his payments to Ms. Abraham were reduced because she asked him to provide her with marijuana, apparently in lieu of a portion of the child support, which she was able to sell for more money than if he had paid her the full amount of child support. Mr. Levesque testified that this arrangement continued for about one year and he then reverted to the $500 weekly payments.

[29] As I understood Mr. Levesque’s evidence, when Harley was 14 or 15 years old (2015 or 2016) Mr. Levesque stopped paying child support directly to Ms. Abraham “because the money was not going where it was supposed to go” due to Ms. Abraham’s alleged drug issues and Harley’s issues with drugs and alcohol. Mr. Levesque testified that from this point on, he sent money to Harley directly and through his parents.

[30] Mr. Levesque testified that he “always supplied what [Harley] needed” and that “whenever Harley needed money the answer was always yes.”

[31] On cross-examination, Mr. Levesque confirmed that Harley graduated from high school on June 25, 2021. Mr. Levesque conceded that he had no documentary evidence confirming his alleged child support payments to Ms. Abraham through Wendy Langlois and Angie DeCiccio, between 2009 and 2013. He also confirmed that any such payments ceased when Harley was in his early teenage years due to Ms. Abraham’s and Harley’s drinking and drug use.

[32] On cross-examination, Mr. Levesque acknowledged that it was not until he was compelled to do so by a disclosure order dated August 31, 2021, that he provided past and current income information (2011–2021) in this proceeding. He further conceded that this disclosure was not in fact provided to counsel for Ms. Abraham until December 2022. When asked what his 2022 income was, Mr. Levesque replied that he did not recall. However, when shown a copy of his 2022 Notice of Assessment and Tax Return Summary, he agreed that his 2022 income was $241,869.

[33] Alana Everson was the domestic partner of Mr. Levesque from 2013-2018. In her will say evidence, she states that Mr. Levesque provided for Harley over that period by purchasing clothes, school supplies, eyeglasses, and vehicles, and by giving Harley money to buy anything he needed. On cross-examination, Ms. Everson testified that she did not recall Mr. Levesque ever sending money directly to Ms. Abraham between 2013 and 2018.

[34] Wendy Langlois allowed Mr. Levesque to reside on her property in his 5th wheel trailer in Seguin, Ontario from April 2008 to October 2011. In her will say statement, Ms. Langlois states that beginning in late May 2008, she deposited $500 every Friday into Ms. Abraham’s bank account at Mr. Levesque’s request. She further states that she continued doing so until Mr. Levesque moved his trailer off her property in October 2011.

[35] On cross-examination, Ms. Langlois testified that the above payments ended in 2010.

[36] Remi Levesque, Mr. Levesque’s father, also provided a will say statement as part of his son’s evidence. In this statement, Remi Levesque states that his son provided for Harley by purchasing him a “4 wheeler” so he could plow driveways (and presumably earn money) and by giving him money directly. Remi Levesque also stated that he gave money directly to Harley for things such as school trips and clothes, and that Mr. Levesque would then reimburse him.

[37] Brittany Levesque, Mr. Levesque’s daughter from a previous relationship, provided a will say statement for this trial. Her statement alleges that Mr. Levesque consistently provided for Harley after 2008 by providing financial assistance when needed, and when Harley called and asked for assistance. These funds were not provided directly to Ms. Abraham, but to Harley directly or to third parties to be provided to Harley.

[38] Angie DeCiccio was Mr. Levesque’s domestic partner from 2009-2013. In her will say statement, she advises that she, along with Ms. Langlois, deposited $500 per week on Mr. Levesque’s behalf directly into Ms. Abraham’s bank account. Ms. DeCiccio further states that “late in [their] relationship… Mr. Levesque stopping sending the money directly to [Ms. Abraham]” and began to send it to Mr. Levesque’s parents to provide for Harley, “cutting Georgette out of the equation.”

THE POSITIONS OF THE PARTIES

The Applicant

[39] Ms. Abraham submits that this divorce application was issued on June 9, 2021, at which time Harley was 20 years old, but still in high school and dependent on her. Ms. Abraham contends that Harley was a child of the marriage within the meaning of section 15.1 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (“Divorce Act”) when this application was issued.

[40] Ms. Abraham submits that this court has jurisdiction to order Mr. Levesque to pay child support to her, in accordance with his income and the CSG’s, for Harley from 2011, when he ceased voluntarily paying child support, to the date that Harley graduated from high school, namely June 25, 2021.

[41] Ms. Abraham submits that Harley resided primarily with her from separation in 2008 to the point in time when he ceased being a child of the marriage on June 25, 2021, presumptively entitling her to child support from Mr. Levesque. Ms. Abraham acknowledges that Harley did reside periodically with Mr. Levesque during those years. However, Ms. Abraham suggests that the evidence clearly establishes that Harley’s time with his father during these years was in the nature of visits or vacation, which do not impact the child support analysis.

[42] Ms. Abraham submits that she provided effective notice of her intention to seek child support to Mr. Levesque in December 2011 when he was served with her Answer/Claim in the SCJ proceeding commenced by him. Ms. Abraham submits that her claim for child support in her 2011 Answer/Claim was effective and formal notice to Mr. Levesque that she was seeking a child support order because he had terminated his voluntary child support payments to her in February 2011.

[43] In the alternative, should the court not accept that effective and formal notice of her claim for child support was provided to Mr. Levesque in 2011, Ms. Abraham submits that there is a reasonable explanation for her delay in bring the present application for child support.

[44] Ms. Abraham contends that Mr. Levesque was abusive to her during their relationship and that he continued to intimidate and threaten her after their separation whenever she raised the issue of child support. Ms. Abraham further submits that when she did find the resolve to initiate claims for child support for the years between 2011 and 2020, she was constrained by her limited financial means and could not advance her case.

[45] Ms. Abraham acknowledges that the record does include some evidence of direct payments to Harley and the provision of gifts to Harley from Mr. Levesque. Ms. Abraham submits, however, that gifts are not child support and that the purpose of child support is to directly assist the custodial parent in meeting the day-to-day expenses of raising a child. Ms. Abraham submits that the value of any gifts and/or direct payments given to Harley by Mr. Levesque should not be considered in the calculation of child support owed to her.

[46] Ms. Abraham submits that the quantum of retroactive child support owed to her by Mr. Levesque can be readily determined by reviewing Mr. Levesque’s income for the years 2011-2021 and the corresponding CSG’s obligation for one child.

[47] Ms. Abraham submits that the retroactive child support owed to her by Mr. Levesque for Harley for the period February 1, 2011 to June 1, 2021 is $74,093 and that an order should issue accordingly.

The Respondent

[48] Mr. Levesque submits that Harley participated in high school remotely and part-time after he turned 18 years of age. Mr. Levesque submits that he has no recollection of Ms. Abraham asking him for child support between 2011 and 2020. He suggests that she did not do so because she was either receiving child support directly from him between 2008 and 2013 or because Harley was being otherwise provided for by him.

DISCUSSION

[49] S. (D.B.) v. G. (S.R.), 2006 SCC 37 (“DBS”), is the leading case on “retroactive” child support – the enforceability and quantification of support that was neither paid nor claimed when it was supposedly due.

[50] The court noted, at para. 2, that such “retroactive” awards are not truly retroactive:

They do not hold parents to a legal standard that did not exist at the relevant time. But they are “retroactive” in the sense that they are not being made on a go-forward basis: the parents who owe support (the “payor parents”) are being ordered to pay what, in hindsight, should have been paid before.

[51] Beginning at para. 80 of DBS, the court discussed the awarding of retroactive child support in the absence of an existing court order for child support, the situation in the present case. The court noted that “absent special circumstances (e.g., hardship or ad hoc sharing of expenses with the custodial parent), it becomes unreasonable for the non-custodial parent to believe he was acquitting himself of his obligations toward his children. The non-custodial parent’s interest in certainty is generally not a very compelling one”. At para. 83, the court in DBS appropriately referred to such orders as “retroactive original orders.”

[52] Jurisdiction to award retroactive original child support in this circumstance is found in s. 15.1 of the Divorce Act which allows a court to make “an order requiring a spouse to pay for the support of any or all children of the marriage.” There is no restriction in the Divorce Act as to the date from which the court may order that the award take effect: at para. 81.

[53] However, at paras. 88-89 of DBS, the court confirmed that pursuant to the definition of “child of the marriage” in section 2(1) of the Divorce Act, a court only has jurisdiction to make a retroactive original child support award if the child in question is a “child of the marriage” when the application is made – “child support is for children of the marriage, not adults who used to have that status.”

[54] In its preamble to the discussion of the factors to be considered in determining when the discretion to award retroactive original child support should be exercised, the court in DBS, at para. 97, emphasized that retroactive original child support awards should not be considered exceptional:

It cannot be exceptional that children are returned the support they were rightly due. Retroactive awards may result in unpredictability, but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts of support first arose.

[55] At para. 99, the court added that none of the factors to be considered before awarding retroactive child support are decisive. A trial court is required to conduct a holistic view of the matter and decide each case based on its particular factual matrix.

Factors to Determine Whether Retroactive Child Support Should be Ordered

1. Reasonable Excuse for Why Support Was Not Sought Earlier

[56] The circumstances that surround the recipient’s choice (if it was indeed a voluntary and informed one) not to apply for support earlier will be crucial in determining whether a retroactive award is justified: see DBS, at para. 100.

[57] At para. 101 of DBS, the court observed that unreasonable delay in seeking child support is not presumptively justifiable. However, the practical concerns associated with initiating a child support application are relevant. Both a recipient parent’s fear of a support payor’s reaction to an application and a recipient parent’s lack of financial or emotional means to advance an application can be reasonable excuses for delay.

[58] At para. 104, the court was careful to add that unreasonable delay by the recipient parent does not eliminate the payor parent’s obligation:

Rather, unreasonable delay by the recipient parent is merely a factor to consider in deciding whether a court should exercise its discretion in ordering a retroactive award. This factor gives judges the opportunity to examine the balance between the payor parent’s interest in certainty and fairness to his/her children, and to determine the most appropriate course of action on the facts.

2. Conduct of the Payor Parent

[59] The conduct of the payor parent, and whether he/she has engaged in “blameworthy conduct”, considered in conjunction with delay in bringing an application, establish that each parent’s behaviour should be considered in determining the appropriate balance between certainty and flexibility in a given case: see DBS, at para. 105.

[60] A support payor’s blameworthy conduct is relevant to the exercise of discretion when considering the propriety of a retroactive award and courts are to take an expansive view of what constitutes blameworthy conduct in this context. Blameworthy conduct is anything that privileges the payor’s own interests over his/her own children’s right to an appropriate amount of support. A payor parent cannot hide his/her income increases from a recipient parent to avoid higher child support payments and a payor parent cannot intimidate a recipient parent to dissuade him/her from bringing an application for child support. A payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see DBS, at paras. 106-107.

[61] At para. 109 of DBS, the court noted that the conduct of the payor parent could, in some circumstances, militate against a retroactive award when such conduct has had the effect of fulfilling his/her support obligation, for example by contribution to expenses beyond his/her statutory obligations. However, the court was careful to add that the payor parent does not have the right to choose how the money that should be going to child support is to be spent – “it is not for the payor parent to decide that his/her support obligation can be acquitted by buying his/her child a new bicycle.”

3. Circumstances of the Child

[62] Courts are required to consider both the present and past circumstances of the child in deciding whether a retroactive award is justified. A child who is currently enjoying a relatively high standard of living may benefit less from a retroactive award than a child who is currently in need. A child who underwent hardship in the past may be compensated for this unfortunate circumstance through a retroactive award; however, this argument will be less convincing where the child already enjoyed all the advantages they would have received had both parents been supporting them: see DBS, at paras. 110, 111 and 113.

4. Hardship Occasioned by a Retroactive Reward

[63] For various reasons, a general consideration of hardship, distinct from undue hardship under the CSG’s, is also appropriate in determining whether a retroactive award is justified. The quantum of retroactive awards is usually based on past income rather than present income, and payor parents may have new families and financial obligations. Courts must be attentive to the potential hardship caused by a retroactive award and attempt to craft the retroactive award in a way that minimizes hardship: see DBS, at paras. 114-116.

Determining the Amount of a Retroactive Child Support Award

[64] In determining the amount of a retroactive child support award, a court must decide the date to which the award should be retroactive and the amount of support that would adequately quantify the payor’s deficient obligations during that time.

1. Date of Retroactivity

[65] The date of effective notice – being any indication by the recipient parent that child support should be paid or re-negotiated – is, as a general rule, the date to which a child support award should be made retroactive. However, it will usually be inappropriate to make a support award retroactive to a date more than three years before formal notice was given to the payor parent: see DBS, at paras. 118, 121 and 123.

[66] However, blameworthy conduct on the part of the payor parent, including intimidation of the recipient parent and non-disclosure of increases in income, will move the presumptive date of retroactivity back to the time when circumstances changed materially: see DBS, at para. 124.

2. Quantum of Retroactive Award

[67] If the date of retroactivity is not before the date the CSG’s came into force (May 1, 1997), the CSG’s must be followed in determining the quantum of support owed: see DBS, at para. 127. However, courts ordering a retroactive award pursuant to the Divorce Act must still ensure that the quantum of the award fits the circumstances. Blind adherence to the amounts set out in the CSG’s is not recommended. Courts may affect the quantum of retroactive awards by altering the time period that the retroactive award captures in order to achieve fairness. A court should not order a retroactive award in an amount that it considers unfair, having regard to all the circumstances of the case: see DBS, at paras. 128 and 130.

[68] Simply put, the court retains the discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair in the particular circumstances of a case.

THE ISSUES TO BE DECIDED

[69] The issues to be decided are as follows:

1. Jurisdiction to make retroactive child support order;
2. Date on which retroactive child support should begin;
3. Do the monies and/or gifts provided directly to the child satisfy the child support obligation; and
4. Quantum of retroactive child support.

Jurisdiction

[70] This is a Divorce Application. Section 15.1 of the Divorce Act provides that a court may make an order for child support for “children of the marriage”. There is no limitation in the Divorce Act as to the date from which the court may order that the child support award take effect: see DBS, at para. 81.

[71] However, the law is settled that a court only has jurisdiction to make a retroactive original child support award if the child in question is a “child of the marriage” when the application was commenced.

[72] This application was issued on June 9, 2021. Harley was living with his mother at that time and graduated high school on June 25, 2021. As such, Harley was a child of the marriage as defined in s. 2(1)(b) of the Divorce Act when the application was commenced. I therefore have jurisdiction to order retroactive child support for Harley.

Date of Retroactivity

[73] Mr. Levesque was obviously aware of his child support obligation to Ms. Abraham as he testified that he paid Ms. Abraham child support for Harley from the date of separation in 2008 until approximately 2014 or 2015. As I understood the evidence, he did so by direct payments to Ms. Abraham for a period of time, and then he had third parties deposit/transfer the child support payments to her.

[74] Mr. Levesque would also have been aware of Ms. Abraham’s child support claim from the Answer/Claim she filed in response to his 2011 application. In my view, Ms. Abraham’s 2011 pleadings, in which she sought child support from Mr. Levesque for Harley, represents effective notice to Mr. Levesque of her claim for child support.

[75] Formal notice of Ms. Abraham’s current claim for child support was provided to Mr. Levesque in 2021, when the current application was issued.

[76] Generally speaking, it will usually be inappropriate to make a child support award retroactive to a date more than three years before formal notice was given to the payor: see DBS, at paras. 118, 121 and 123. This would suggest that Ms. Abraham’s claim for retroactive child support should not be granted for the period of time earlier than 2018.

[77] However, I find that Mr. Levesque has engaged in blameworthy conduct in relation to Ms. Abraham’s claim for child support, and that Ms. Abraham has a reasonable excuse for the significant period of delay prior to the date of formal notice of her claim.

[78] Mr. Levesque did not provide any form of income disclosure to Ms. Abraham prior to being compelled to do so by court order in this proceeding in December 2022. I accept the evidence of Ms. Abraham that she was intimidated and threatened by Mr. Levesque whenever she raised the issue of child support after he had stopped making payments to her. Courts are to take an expansive view of “blameworthy conduct”, defined as anything that privileges the payor’s own interests over his own children’s right to an appropriate amount of support: see DBS, at paras. 106-107.

[79] In my view, the evidence clearly establishes that Mr. Levesque, in the period of time prior to 2018, placed his financial interests ahead of Ms. Abraham and Harley’s right to a proper level of child support.

[80] I also accept Ms. Abraham’s evidence that she was financially unable to litigate the issue of child support until after she obtained full-time employment in 2017 and had saved some money for legal fees.

[81] As a result, retroactive child support may be made payable by Mr. Levesque to Ms. Abraham for the period of time beyond three years prior to the date of formal notice.

[82] Ms. Abraham testified that Mr. Levesque terminated his voluntary child support payments in 2011. She denies that he paid any child support to her after 2011, either directly or by having third parties deposit/transfer funds into her bank account.

[83] Angie DeCiccio, Mr. Levesque’s domestic partner from 2009-2013, testified that either she or Wendy Langlois deposited $500 weekly directly into Ms. Abraham’s bank account until “late in their relationship”. Wendy Langlois testified that any payments she made on behalf of Mr. Levesque ended in 2010 or 2011. Alana Everson, Mr. Levesque’s domestic partner from 2013-2018, testified that she did not recall Mr. Levesque sending child support to Ms. Abraham after 2013. She did testify that Mr. Levesque provided for Harley between 2013 and 2018 by way of direct payments to Harley and by the purchase of gifts for Harley.

[84] While the evidence is not at all clear, the preponderance of evidence does establish that child support in varying amounts was paid to Ms. Abraham by Mr. Levesque after 2011, when she alleges that child support ceased, and up to and including 2013. I do not find that the provision of limited support directly to Harley, or the provision of gifts to Harley, at any time by Mr. Levesque constitute child support paid to Ms. Abraham. I am also cognizant of the fact that a retroactive child support award in the very significant amount claimed will cause hardship to Mr. Levesque.

[85] Considering all facts and circumstances, I conclude that an award of child support from Mr. Levesque to Ms. Abraham should be made retroactive to January 1, 2014, and continue until June 30, 2021. As noted, Harley graduated high school on June 25, 2021.

Quantum of the Retroactive Reward

[86] It is not in dispute that Mr. Levesque’s income and the corresponding CSG amount payable for the years 2014 to 2021 are as follows:

Year	Rheal’s Income	Table Monthly Child Support	TOTAL
2014	$93,208	$827	$9,924 (12 months)
2015	$110,143	$959	$11,508 (12 months)
2016	$96,972	$856	$10,272 (12 months)
2017	$96,609	$884	$10,608 (12 months)
2018	$734	$0	$0
2019	$65,995	$615	$7,380 (12 months)
2020	$78,058	$728	$8,736 (12 months)
2021	$98,187	$896	$5,376 (6 months)
TOTAL			$63,804.00

[87] This results in a retroactive child support award in the amount of $63,804 to be paid by Mr. Levesque to Ms. Abraham for the period January 1, 2014, to June 30, 2021. I order that this amount is to be paid at a rate of $1,000 per month until paid in full.

[88] The applicant is entitled to her costs of this application on a partial indemnity basis. If the parties cannot agree on costs, they shall make written submissions as to costs, not to exceed 5 pages, exclusive of Bills of Costs. The applicant’s costs submissions shall be submitted with 30 days of the release of this decision; the respondent’s within 14 days thereafter.

“originally signed by”

The Hon. Mr. Justice J.S. Fregeau

Released: June 19, 2024

COURT FILE NO.: FS-21-107-00 DATE: 2024-06-19 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: GEORGETTE MARY ABRAHAM Applicant - and - RHEAL ROLLAND LEVESQUE Respondent REASONS ON APPLICATION Fregeau J. Released: June 19, 2024