Court File and Parties

COURT FILE NO.: FS-05-3902 DATE: 2024-07-03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Patricia Ann Wilcox Ram Shankar, for the Applicant Applicant

- and -

Christopher Alan Worthington Brian Kelly, for the Respondent Respondent

HEARD: June 3, 2024

JUDGMENT

INTRODUCTION

[1] This trial involves a Motion to Change the final Order of Justice Thompson dated March 23, 2006, filed by the Respondent Father, Christopher Worthington, on September 20, 2021. In the motion to change, the Father seeks to end his obligation to pay child support, including post secondary education expenses, for the four children of the marriage, who are now aged 29, 27, 24 and 22, retroactive to October 1, 2020. The Father also seeks a reimbursement for an overpayment of spousal support, and an Order terminating spousal support.

[2] The Applicant Mother, Patricia Wilcox, filed a Response to the Motion to Change on October 22, 2021. In her Response, the Mother asks that child support payments continue in accordance with the Order, and she requests section 7 expenses be paid retroactive to March 23, 2006, and ongoing, including the children’s post secondary expenses. The Mother also asks that spousal support payments continue, and be indexed on each anniversary date retroactive to April 21, 2006. The Mother also asks that the Father reimburse her $1,858.20, which is the tax liability she incurred when she received a lump support payment from the Family Responsibility Office (“FRO”) in 2020. Finally, the Mother asks to be compensated for the periods of time when the Father did not exercise parenting time as stipulated in the Order of Justice Thompson.

[3] The trial proceeded by way of affidavit and oral evidence. The only witnesses at the trial were the parties. During the trial, the parties reached a procedural agreement that I will determine the date upon which s. 7 expenses became payable, but issues related to the quantum and duration of s.7 expenses will be addressed at a subsequent trial before me.

[4] For the reasons that follow, I find the following:

a) The Father owes a lump sum child support payment to the Mother of $88,268, which recognizes the increases in his income that he failed to disclose to the Mother following the March 23, 2006 Order of Thompson J.;

b) The Father is not required to pay ongoing monthly child support payments;

c) The Father owes s.7 expenses to the Mother retroactive to October 22, 2018. The quantum and duration of s. 7 expenses will be addressed at a subsequent trial if the parties are unable to agree upon the quantum and duration of these payments;

d) The Mother is to pay the Father $14,388 to reimburse him for an overpayment in spousal support payments. The Father is not required to pay ongoing spousal support;

e) The Father is to pay the Mother prejudgment interest on the $73,880 owed to her under section 128 of the Courts of Justice Act. If the parties are unable to agree upon the quantum of prejudgment interest owed, each party shall provide a one page interest calculation by July 10, 2024 emailed to my judicial assistant at Bihara.wijewardena@ontario.ca ;

f) The Father is not required to pay the Mother compensation for the periods of time that he did not exercise his parenting time; and

g) The Father is not required to reimburse the Mother for the $1,858.20 additional tax that she was required to pay in 2020.

BACKGROUND

[5] The Mother indicates in her affidavit that the parties commenced living together in August of 1993 and married eight years later on August 1, 2001. The Father’s affidavit is silent as to the period of time the parties cohabited prior to being married, although I note that three of the four children were born prior to the date of marriage.

[6] The Mother provides evidence (and the Father does not dispute) that she stayed home to care for the four children while the Father worked predominantly as a truck driver, a career which he started in approximately 1995. The parties agree that the family moved frequently between cities during the parties’ relationship as opportunities for work became available to the Father and, further, that the Father’s work sometimes kept him away from the family during the week, but he would generally return home on weekends.

[7] When the parties began living together, neither had completed high school.

[8] The Mother’s affidavit indicates that in 2001 she worked part-time at a grocery store for four months earning minimum wage, but the high costs of childcare made it impractical for her to continue working.

[9] She also provides evidence that in 2005, she earned her secondary school diploma through an online course. In 2007 she took an office administration course at Georgian College and graduated in May of 2008. The Mother testified that even before she had graduated, she had obtained a job working at a doctor’s office, where she continued to work for the next three years. By 2009 she had saved enough to put a downpayment on a house, where she continues to live to this day.

[10] The Father testified that he also eventually earned his secondary school diploma and, at the suggestion of the Mother, attended a three month course at Mohawk College in approximately 2009 to study non-destructive testing. He completed the course, but was unable to find work in the field.

[11] The parties agree that they separated on September 1, 2005, and that the litigation between them ended on March 23, 2006 with a final Order from Justice Thompson that addressed equalization, child support, spousal support, and issues related to parenting time (then described as custody and access). In particular, the Order states that the Respondent is to pay child support for the four children in the amount of $672.00 per month, and spousal support in the amount of $300.00 per month, based on an imputed income of $30,000, commencing on April 21, 2006. Importantly, the Order also states:

The Respondent shall advise the Applicant immediately in writing if he gets a raise in pay and shall pay child support as per the guidelines effective the date of the raise in pay.

[12] The Order was silent regarding s.7 expenses.

[13] The Order also indicated that the Father was to have alternating weekend parenting time with the children, as well as three weeks during school summer vacations, one-half of the school Christmas breaks, and alternating March Breaks.

[14] The Father did not dispute the Mother’s affidavit and oral evidence that in April 2007, she withdrew from the administration of support payments through the FRO at the request of the Father.

[15] Following the parties’ divorce, there were several periods of attempted reconciliation where the Father rejoined the family and lived with them for several months at a time. The parties do not share the same recollections of the length of these periods of cohabitation. In particular, the Father testified that one of these periods of attempted reconciliation lasted eighteen months. By contrast, in her affidavit the Mother specifies that there were three periods of attempted reconciliation: January 2007 to February 2007; August 2012 to September 2012; and June 2013 to August 2013.

[16] During these attempts at reconciliation, the parties agree that the Father exercised parenting time with the children, although not necessarily in compliance with the terms of the Order. The Father does not dispute that after the parties ceased their reconciliation efforts, he has not exercised much of the parenting time available to him, apart from an eight-month period in 2015 when the parties’ daughter Ryann lived with him. This arrangement ended when the Father sold his house in 2015.

[17] The parties both testified that during the periods of attempted reconciliation, the Father gave the Mother cash or cheque payments to assist with support. There is no record of these payments. The Mother provides affidavit evidence that other than purchasing groceries occasionally, the Father did not make any additional contributions to the household expenses. The Father did not dispute this evidence at trial.

[18] In approximately 2013 the parties ended their attempts at reconciliation, following which the Father had reduced contact with the family.

[19] The Mother states in her affidavit that after the FRO was no longer involved, the Father made his regular support payments directly to her until March of 2015, when he stopped paying her on time. The Mother sent the Father an email on June 2, 2015 asking him to continue his support payments and advising him as to the quantum of certain additional expenses for the children. The email also requests income information from the Father as follows:

Lastly, I will once again request that you send me a copy of your Notice of Assessment. Since you have never responded to my requests in the past, I am asking that you please forward a copy of each and every one since 2006. It is the only way to determine if we are and have been paying/receiving the appropriate amounts.

[20] When the Father did not re-commence making support payments, the Mother re-engaged with the FRO.

[21] In her affidavit, the Mother indicated that in 2020, the FRO collected the sum of $30,683.87 from the Father for arrears owing in child and spousal support, with $9,470.33 being allocated to spousal support, and $21,213.54 being allocated to child support. The Mother provides evidence that this retroactive spousal support payment caused her to owe an additional $1,858.20 in income tax in 2020, and in addition, she lost the $5,000 refund that she typically receives. The Mother testified that these two issues caused her additional financial hardship.

[22] The Father did not provide evidence to dispute the Mother’s evidence that throughout their lives, she was the primary parent responsible for all of the children’s needs, including grocery shopping, cooking, taking them to appointments, ensuring they completed their homework, looking after them whey they were ill, and taking them to activities. She also indicates in her affidavit that she was the primary parent to discipline the children, and to look after their emotional needs. She also provides evidence that her house is the “home base” for the children while they attend their post-secondary programs away from home.

[23] It is not disputed that the Father did not inform the Mother in writing of his increases in pay as he was required to do pursuant to the terms of the 2006 Order. The Mother only became aware of the income earned by the Father when he filed his tax information and other additional financial disclosure in support of his Motion to Change. The Father provides a statement from the FRO dated February 26, 2024, confirming that he owed $1,420 in support as of that date. He gave evidence that his payments are current now. The Father does, however, acknowledge that he owes the Mother retroactive child support payments based on past increases in his income.

[24] There is a disagreement between the parties as to when the Mother requested that the Father provide income information or contribution to s.7 expenses. The Mother indicates both in her affidavit and in oral testimony that she requested income information annually from the Father. The Father indicates in his affidavit that these requests for information were not made, apart from the June 2, 2015 email.

[25] The parties agree that there was no other written communication from the Mother to the Father regarding outstanding support payments apart from the June 2, 2015 email.

[26] The Father does not dispute the evidence provided by the Mother as to the academic accomplishments of the children. The oldest child, Paisley, obtained a Bachelor of Science in 2017, a Masters of Science in 2019, and is presently working on her PhD in education. Paisley’s T4 from 2019 indicates that she earned over $40,000 that year.

[27] The second child, Quinn, obtained a Bachelor of Science in 2019, a Masters of Science in 2022, and is presently working on a contract basis for the University of Whitehorse. In 2018, she earned over $23,000 before her first degree was completed, and in 2021 she earned over $19,000. Quinn’s present income working for the University of Whitehorse was not provided.

[28] The third child, Ryann, obtained a diploma in culinary management in 2019. She then attended Conestoga College for the Pre-Apprenticeship Welder/Metal Fabricator Program from 2020 to 2021. In 2022, she attended Sheridan College for the Pre-Apprenticeship Industrial Millwright Mechanic Program. She is currently working full-time as a millwright apprentice and earned over $40,000 in both 2021 and 2022.

[29] The fourth child, Sawyer, obtained a diploma in the powerline technician program at Conestoga College in 2023. He is currently working full-time as a driver and is waiting for an opportunity to work as a powerline technician. Sawyer earned almost $28,000 in 2021, and approximately $25,000 in 2022.

[30] I was not provided with 2023 income information for any of the children.

THE ISSUES

1. Does the Father owe the Mother retroactive and ongoing child support?

2. If child support is owed, what is the quantum?

3. From what date, if at all, is the Father required to provide payment for s.7 expenses to the Mother?

4. What is the quantum of spousal support to be reimbursed by the Mother to the Father?

5. Is the Father required to compensate the Mother for the times when he did not exercise parenting time according to the March 23, 2006 Order?

6. Is the Father required to reimburse the Mother for the additional tax payment of $1,858.20 that she was required to make in 2020?

EVIDENCE OF THE FATHER

[31] The Father provided three affidavits dated October 30, 2023, March 18, 2024, and May 27, 2024, in addition to oral evidence given during the trial. He acknowledged that he did not provide the Mother with information regarding his income, contrary to the requirements of the March 23, 2006 Order of Justice Thompson. He testified that over the years he has worked many different jobs, but that he generally had steady income. The exception to his historical work pattern is in the years 2016 to 2018, when he suffered an injury to his shoulder and back at work. This injury aggravated a pre-existing injury that he had sustained in a car crash several years before in 1999. The Father stated that after the injury, for a period of time he was only permitted to do light work. Since there was no light work available at the flour mill where he was working, his employment ended.

[32] The Father stated in his affidavit that he received WSIB payments for eight weeks following this injury, but later amended his testimony at trial to indicate that the payments may have been through Employment Insurance.

[33] The Father testified that he accumulated a substantial amount of debt in the two years that he was off work, and that the FRO was in regular contact with him regarding the support payments he owed. He testified that he was living off his credit cards when he was unable to work due to his injury. The Father did not produce any medical documentation to support his inability to work during those years, nor did he produce documentation that he was paid by WSIB or any other disability plan during those years.

[34] The Father testified that when the FRO was not involved with the family, he discussed the income he was receiving with the Mother, and they determined together the amount of support that she was to receive. This evidence did not appear in any of the three affidavits sworn by the Father prior to trial.

[35] In his affidavit, the Father provided a comparison of the Line 15000 income of himself and the Mother from 2015 to 2022, which demonstrated that in the years 2017 and 2018 when he was off work due to his injury, the Mother earned a higher income than him. In the years 2019 and 2020, the salaries of the Mother and Father are reasonably comparable.

[36] The Father provided affidavit evidence that the Mother did not verbally request information about his income in the years following the 2006 Order.

[37] The Father acknowledged that when he lived with the family post-separation, he was aware of the children’s activities, but did not offer to fund any of their activities or special expenses. He also stated that his consent was not obtained before any of the children were enrolled in activities. He testified that he had never seen receipts for the children’s activities and expenses until he received the Mother’s affidavit sworn December 14, 2023.

[38] The Father testified that he is presently working in Alberta driving trucks carrying oil. In 2023, he worked two jobs for a combined income of $123,066.97. He is able to work some overtime hours with his present employment, which also provides him with accommodations when he is working in Alberta.

[39] Despite this level of income, the Father testified that he has few assets. He does not own a house, and he resides with his parents in New Brunswick when he is not in Alberta working. He owns a 2009 Silverado truck that is high in mileage, a 2008 Artic Cat ATV, and a 1980 aluminum boat and trailer. He is also making payments on a Boomer Trailer that he purchased, worth about $43,000. The Father testified that he owns the Boomer because he eventually wishes to lease the hayfield behind his parents’ home in New Brunswick, and get into the hay business. He testified that he has chronic obstructive pulmonary disease, and that it would be in the best interest of his health to remove himself from the environment of oil fumes he is currently exposed to at his job in Alberta.

[40] The Father described positive relationships with all four children prior to and initially after separation, although he noted that the two oldest children have not been in touch with him since approximately 2014. He testified that his relationship with his daughter Ryann was more successful. He testified that he returned from Alberta to Owen Sound at Ryann’s request when she moved in with him in 2015. However, he also testified that at this time none of the children are in contact with him. He indicated that he is unsure as to why they are no longer communicating with him.

EVIDENCE OF THE MOTHER

[41] The Mother provided two affidavits, dated December 14, 2023 and May 24, 2024, in addition to her oral evidence.

[42] The Mother testified that when she withdrew from the FRO in April 2007, she and the Father were getting along well as separated spouses, and he was making the court ordered payments regularly. However, she was not receiving any information as to increases that he received in his income. The Mother does not recall having conversations on the phone with the Father during which they discussed his income and payments. She testified that the payments from the Father were often inconsistent, but that there were also long periods of consistency when she received the support payments regularly.

[43] The Mother states in her affidavit that she worked part-time as a bookkeeper from 2012 to 2018. In addition, in 2017 she continued her education at Georgian College, where she graduated with a Business Administration Advanced diploma in 2020, which she obtained while still working part-time at Grey Bruce Health Services in various administrative positions.

[44] In June 2019 she obtained a full-time position with Grey Bruce Health Services, which she maintained until 2022, when she left that position to focus full-time on her bookkeeping business, which she had resumed part-time in September 2021.

[45] The Mother testified that at the time that the March 23, 2006 Order was signed, she did not know what a s.7 expense was, and that she only learned about s.7 expenses while meeting with a lawyer on June 12, 2015.

[46] The Mother also testified that the years of single parenting four children with little to no parenting assistance from the Father caused her exhaustion, and that she would have benefited greatly if she could have received some respite from her parenting responsibilities.

[47] The Mother further testified that after the FRO was able to obtain a large retroactive support payment for her for the years 2015-2020, she was taxed an additional $1,828.20 in 2020 due to her increased income. She maintains that she would not have been penalized with this additional tax payment if the Father’s support payments had come in regularly as required by the March 23, 2006 Order.

POSITIONS OF THE PARTIES

Child Support Owed

[48] The Father calculates a child support payment owed to the Mother of $90,104, retroactive to 2006. However, he submits that he should only be required to pay child support retroactive to 2012, which is three years prior to the June 2, 2015 email the Mother sent to the Father requesting his income information. The Father therefore submits that he owes the Mother $53,739 in child support arrears from 2012 to 2023.

[49] The Father submits that the child support payments he has been regularly making for Paisley should have terminated on January 1, 2017 at the conclusion of her first degree. Similarly, he argues that child support payments for Quinn should have terminated on May 1, 2019, at the conclusion of her first degree. He argues that child support payments for Ryann should have terminated on May 1, 2019, when she completed two years of culinary training and became employed in Ireland. He also submits that Sawyer’s support payments should have terminated in September 2023, when he completed two years of post-secondary training as a lineman technician.

[50] When calculating the retroactive child support owed, the Father submits that his income in 2017 and 2018 should not be imputed to a higher amount because he was injured and unable to work during those years. In addition, he submits that a claim for imputation of income was not pleaded in the Response to Motion to Change, and therefore should not be considered at this trial. He argues that the Mother had ample opportunity to seek to amend her pleadings prior to trial and did not do so, and therefore it is too late for her to now seek an additional claim.

[51] The Father also seeks credit in the child support arrears calculations for the eight months that Ryann lived with him in 2015.

[52] The Mother submits that the Father owes her additional child support for all four children retroactive to 2006 based upon his non-disclosure of income. She asks that his income for 2017 and 2018 be imputed to $86,300.67 per year, which is an average of the Father’s annual income in the years 2014-2016.

[53] The Mother calculates that the retroactive child support owed to her is $100,832.40 (not including the requested adjustment for imputed income in 2017 and 2018) plus interest at 5% ($43,217.02).

Entitlement to s.7 Expenses

[54] The Father takes the position that the effective notice date for the s.7 arrears is December 14, 2023, which is the date of the Mother’s affidavit that includes receipts for the claimed s.7 expenses. The Father testified that this was the first time he saw any receipts for s.7 expenses. The Father proposed that he be ordered to pay s.7 expenses retroactive to October 22, 2021, which is the date of the Mother’s Response to Motion to Change form. The Father submits that given the silence of the Order with respect to s.7 expenses, it is not fair or appropriate for the Mother to not request financial contribution from him for these expenses, except for the one email from 2015, and then now demand financial contributions back to 2006.

[55] The Father argues that once the Mother learned about s.7 expenses in June of 2015, she ought to have pursued payment for those benefits immediately, rather than waiting another six years before claiming them in the Response to Motion to Change.

[56] The Mother argues that she ought to be reimbursed for the Father’s share of s.7 expenses retroactive to 2006. She submits that he was aware of many of the children’s activities, and knew that he had not contributed to funding same. The Mother testified that she did not bring the claim for s.7 reimbursement earlier as she was exhausted from working full time and functioning as a single parent, and did not have the financial resources or the energy to hire a lawyer to chase the Father to force him to pay his share of the s.7 expenses.

Range of Spousal Support and Reimbursement Owed by the Mother

[57] The Father submits that spousal support should be assessed in the mid-range of the Federal Spousal Support Guidelines. He provided a calculation that uses tax neutral mid-range spousal support under the Guidelines, resulting in a $32,348 overpayment of spousal support by him to the Mother since the March 23, 2006 Order. However, he suggests that the overpayment be limited to $10,148, as that is the amount overpaid in spousal support since June 2012. He submits that the Mother has been overpaid by the support payments already received, and that there is no justification for assessing spousal support at the high end of the range. The Father takes the position that spousal support should terminate effective May 31, 2024.

[58] The Mother submits that she should be entitled to spousal support at the high end of the range. She argues that she delayed her opportunity to develop a career to stay home and raise the four children of the marriage, allowing the Father to pursue his career without obstacles. She further argues that the Father’s failure to provide respite for her by not exercising regular parenting time with the children entitles her to spousal support at the higher end of the range.

[59] The Mother also takes the position that the Father’s frequent changes to employment while they lived together created a life of instability, in which she was unable to consider obtaining sustainable employment. In addition, she provides affidavit evidence that the Father controlled the family finances, so she was unable to obtain funding for further education.

[60] The Mother calculates that she has been overpaid in spousal support by $14,338 using the high end of the range. She suggests that this amount be deducted from the retroactive child support owed to her. Despite the relief sought in her Response to Motion to Change, at trial the Mother did not suggest that she continue to receive ongoing spousal support.

Missed Parenting Time

[61] The Father does not dispute that he did not have regular parenting time with the children. Under cross-examination, the Father admitted that it was expected that he would exercise the parenting time set out in the Order from Justice Thompson, and he agreed that when he did not exercise parenting time, he did not make any alternate arrangements for the care of the children.

[62] By the conclusion of the trial, the Mother withdrew her claim for compensation based on the Father’s missed parenting time, recognizing it was a novel claim. Instead, she argues that the fact that the Father abandoned much of his parenting time is a factor that justifies assessing past spousal support owed by the Father to the Mother in the high end of the spousal support range.

Repayment of $1,858.20 Income Tax Penalty incurred by the Mother

[63] The Mother seeks repayment for the $1,858.20 income tax penalty that she sustained in 2020 when the FRO collected the Father’s retroactive support payment and $9,470.33 was added to her income in a lump sum. The Father did not address this issue in his submissions or in his evidence.

THE LAW

[64] Section 17(1) (a) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), provides that, on application, a court “may make an order varying, rescinding or suspending, retroactively or prospectively, a support order or any provision of one”.

Amending pleadings

[65] Rule 11(3) of the Family Law Rules, O. Reg. 114/99, states that, “[o]n motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.”

[66] It is well established that the test for leave to amend under r. 11(3) strongly favours permitting amendments except in the clearest of cases (Cuthbert v. Nolis, 2024 ONCA 21, at para.17).

Duration for Payment of Retroactive Child Support

[67] When determining whether to make a retroactive award, the judge will need to look at all the relevant circumstances of the case, and balance the payor parent’s interest in certainty with the need for fairness and for flexibility. The judge must consider four main factors, including whether the recipient parent has supplied a reasonable excuse for their delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail (D.B.S. v. S.R.G., 2006 SCC 37, at para. 133).

[68] Once a court decides to make a retroactive award, it should generally make the award retroactive to the date when effective notice was given to the payor parent. But where the payor parent engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date of the award. It will then remain for the court to determine the quantum of the retroactive award consistent with the statutory scheme under which it is operating (D.B.S. at para.134).

[69] In Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, the Supreme Court further discussed the concept of blameworthy behaviour on the part of the payor parent. At para. 31, Brown J. states:

When a payor parent fails to pay the appropriate amount of child support, the recipient parent is left to shoulder the burden. If the recipient parent does not have the means to provide their child reasonable support, the child suffers. Both the recipient parent and the child may experience hardship because of a payor parent’s neglect. Seen in this light, it bears repeating that retroactive child support is not exceptional relief (D.B.S., 2006 SCC 37, at para. 5): there is nothing exceptional about judicial relief from the miserable consequences that can flow from payor parents’ indifference to their child support obligations. This is not to say that hardship is required to ground an award for retroactive child support, as there is also nothing exceptional about relief that creates a systemic incentive for payor parents to meet their obligations in the first place. Just as an order of child support is intended to provide children with the same standard of living they enjoyed when their parents were together (D.B.S., 2006 SCC 37, at para. 38), an order of retroactive child support provides an (albeit imperfect) remedy where that does not occur. And as this Court recognized in D.B.S., “courts are not to be discouraged from defending the rights of children when they have the opportunity to do so” (para. 60).

[70] Justice Brown also states in Michel that the date of effective notice is not relevant when a payor parent has engaged in blameworthy conduct. In that circumstance, there is no need to protect the payor parent’s interest in the certainty of his obligations beyond the date when circumstances changed materially (para. 36).

[71] The Supreme Court reviewed the D.B.S. decision in Colucci v. Colucci, 2021 SCC 24, [2021] 2 S.C.R. 3, and clarified that the Court has a presumption in favour of retroactively decreasing support up to three years before formal notice of an intention to seek a downward adjustment in support is provided to the recipient, which is triggered as soon as a past material change in circumstances is established. Martin J. confirms at para. 6 of Colucci that the presumption-based approach applies to requests to both retroactively decrease and increase support payments:

This presumption is triggered as soon as a past material change in circumstances is established — it is no longer necessary to first ask whether retroactive relief is generally appropriate before moving to the question of how far back retroactive relief should extend. Discretionary factors parallel to those considered in D.B.S. may justify departing from the presumptive date in favour of a longer or shorter period of retroactivity. For consistency, this presumption-based approach should be mirrored where the recipient seeks a retroactive increase. Once a past material change in income is established, a presumption is triggered in favour of retroactively increasing support to a certain date, with the D.B.S. factors guiding the court’s exercise of discretion in deciding whether to depart from that date.

[72] Justice Martin also states in Colucci that the Court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair in the circumstances of a particular case. The three interests that must be balanced are the child’s interest in a fair standard of support, the payor’s interest in flexibility, and the interest of the child and recipient in certainty. None of the factors is determinative, and they must be viewed holistically (para. 96).

[73] Having confirmed that a failure to disclose an increase in income is blameworthy behaviour, Martin J. also states that the date of retroactivity is frequently adjusted to align with the material increase in income (Colucci, 2021 SCC 24 para. 43). Martin J. also stated that a presumption in favour of varying support to the date of the increase reflects the recipient parent’s informational disadvantage, and removes incentive for payors to withhold disclosure or underpay support in the hopes that the status quo will be maintained (para. 45).

[74] The Supreme Court also confirmed in Colucci that regardless of whether the recipient had given notice, the payor knew when their own income had increased and must be taken to know that more income means more support (para. 86), and that the recipient’s delay in enforcing arrears is irrelevant to the analysis (para. 100).

[75] Colucci also clarifies that in the absence of blameworthy behaviour on the part of the payor spouse, the Court will consider the date when the payor spouse received effective notice of a demand for an increase in support payments, but payment will generally not be ordered more than three years from the date that formal notice was given to the payor spouse (para. 39).

[76] Section 15.2(4) of the Divorce Act sets out the following factors to be considered when determining the quantum of spousal support:

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

[77] Section 15.2(6) of the Divorce Act sets out the objectives of a support order:

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

ANALYSIS

Amendment of Pleadings at Trial

[78] The Mother seeks to impute income to the Father for the years 2017 and 2018. This request was not pleaded, nor did the Mother formally ask to amend her pleading pursuant to r. 11(3). The Mother did, however, raise the issue in her opening and closing statements.

[79] The language in r. 11(3) is mandatory. Amendments must be granted unless prejudice to the opposing party will result that cannot be compensated for by way of costs or an adjournment.

[80] I am not willing to entertain a claim for imputation of income for the years 2017 and 2018 as a formal request to amend the pleadings was never made by the Mother, and secondly, I find that to allow the amendment will cause prejudice to the Father that cannot be addressed through costs.

[81] The Father submits (and the Mother does not dispute) that she has been in possession of the Father’s tax and income information since the fall of 2022. I can see no reason why a request to amend the pleadings to include a claim for imputation of income was not raised prior to the commencement of the trial. I accept the Father’s argument that had he known that a claim for imputation of income was going to be made in advance of the trial, he may have chosen to obtain medical reports or other evidence to address this issue. There was no new evidence given during the trial that caused this issue to suddenly become relevant to require a last-minute amendment to the pleadings.

[82] Pleadings inform the responding party as to the case that they must meet. While I appreciate that there are cases in the jurisprudence that permit last minute requests to claim new relief even at the conclusion of a trial, the prejudice to the Father prohibits such an amendment in this case. My findings will therefore be made by relying upon the information contained in the income tax documentation provided by both parties.

Duration of Retroactive Child Support

[83] The Father does not dispute that he failed to provide the Mother with annual updates as to his income contrary to the terms of the March 23, 2006 Order from Justice Thompson. The Father has not been actively involved in the children’s lives for over a decade. The Mother has struggled to financially meet the needs of her four children. I accept the Mother’s evidence that she verbally questioned the Father as to his income, but had not yet received the requested information from the Father when she sent him the email on June 2, 2015.

[84] I reject the Father’s evidence that he and the Mother had regular telephone conversations to discuss his income and the amount owed to the Mother. This evidence does not appear in any of the three affidavits sworn by him prior to trial, and is not supported by any of the evidence provided by the Mother.

[85] The Father’s failure to disclose his income constitutes blameworthy conduct pursuant to the criteria discussed in Colucci. I need not make findings as to the date of actual notice, nor does the three-year rule have application in this circumstance. I find that the facts in this case warrant payment of retroactive child support to the date of Justice Thompson’s Order on March 23, 2006.

Quantum of Retroactive Child Support Owed by the Father

[86] I accept the Father’s suggestion that he pay child support for each child until the completion of their first degree. He is therefore required to pay child support for four children from 2006 to 2016, for three children from January 1, 2017 to May 1, 2019, and for one child from May 1, 2019 to September 30, 2023. In the chart below I have used the income amounts as stated in the Father’s Notices of Assessment to identify the child retroactive child support owed by the Father to the Mother:

Year	Income	Support Owed per Month	Support Paid	Difference in Payment Owed
2006	$35,941	$840	$672	$168 x 9 months = $1,512
2007	$50,771	$1,181	$672	$509 x 12 = $6,108
2008	$49,834	$1,156	$672	$484 x 12 = $5,808
2009	$29,161	$707	$672	$35 x 12 = $420
2010	$64,523	$1,522	$672	$850 x 12 = $10,200
2011	$58,062	$1,360	$672	$688 x 12 = $8,256
2012	$66,322	$1,537	$672	$865 x 12 = $10,380
2013	$76,214	$1,747	$672	$1,075 x 12 = $12,900
2014	$134,573	$2,830	$672	$2,158 x 12 = $25,896
2015	$78,570	$1,796	$672	$1,124 x 4 = $4,496

 |        | $1,171 (Three children) | $672 | $499 x 8 = $3,992

2016 | $45,759 | $1,036 | $672 | $364 x 12 = $4,368 2017 | $14,075 | $147 (Three children) | $672 | ($525) x 12 = ($6,300) 2018 | $18,085 | $286 (Three children) | $672 | ($386) x 12 = ($4,632) 2019 | $50,828 | $994 (Three children) | $672 | $322 x 4 = $1,288 | | $468 (One child) | $672 | ($204) x 8 = ($1,632) 2020 | $64,933 | $604 (One child) | $672 | ($68) x 12 = ($816) 2021 | $70,586 | $660 (One child) | $672 | ($12) x 12 = ($144) 2022 | $82,255 | $766 (One child) | $672 | $94 x 12 = $1,128 2023 | $123,066 | $1,092 (One child) | $672 | $420 x 12 = $5,040

[87] The total amount owed by the Father to the Mother in retroactive child support is $101,792 minus $13,524 (child support overpayment) = $88,268.

Duration of Retroactive Section 7 Expenses

[88] It is indeed puzzling why the original Order from Justice Thompson does not address s.7 expenses. The evidence is clear from both parties that, following the separation, the Mother paid for the children’s extra-curricular activities, school activities, childcare and medical needs. I accept the Mother’s evidence that she informed the Father of the cost of the children’s activities and expenses from time to time. The Father was candid in his acknowledgement that he did not contribute additional funds for these expenses.

[89] Although the Mother was entitled to receive contributions from the Father towards the cost of these expenses, she did not formally advance this claim until she filed a Response to Motion to Change form on October 22, 2021. She did not provide copies of the receipts to the Father until December 2023. She did, however, refer to some of the children’s expenses in her June 2, 2015 email to the Father.

[90] I accept the Mother’s testimony that she was struggling financially, and that over the years she informed the Father of the cost of some of the activities and other needs of the children, as she was hoping he would contribute to the cost of same.

[91] I find that the Father was wilfully ignorant regarding the cost of the children’s s.7 expenses. He knew the children were involved in activities and had other expenses, and he knew that he was not paying for these expenses. I do not, however, find that his failure to inform himself about the cost of the children’s activities and extraordinary expenses rises to the level of blameworthy conduct that triggers a retroactive payment back to 2006. It is not reasonable for the Mother to not provide receipts for expenses for 17 years, and then expect reimbursement for same.

[92] Payment of s.7 expenses is a form of child support. The analysis in Colucci confirms that there need not be written notice of a need for support, but rather, it is sufficient if the topic is broached to permit a retroactive payment of up to three years from the date of actual notice. Although some of the children’s expenses are referenced in the June 2, 2015 email from the Mother to the Father, I do not find this singular email sufficient to trigger actual notice of all the s.7 expenses now being claimed. The Mother provided formal notice of her intention to claim s.7 expenses in her Response to Motion to Change signed on October 22, 2021. The Mother is permitted to request reimbursement for s.7 expenses from three years prior to that date. The Mother may therefore make claims for s.7 expenses retroactive to October 22, 2018.

[93] The parties have agreed that the quantum of s.7 reimbursement, including claims for any ongoing s.7 expenses owed by the Father to the Mother, will be addressed at a subsequent trial.

Range of Retroactive Spousal Support

[94] I find that it is appropriate to award the Mother spousal support at the high end of the range for the following reasons:

a) The Mother sacrificed employment opportunities to be a stay-at-home mother who was the primary caregiver for four children;

b) The Mother was forced to retrain while working full-time to continue providing financial support to the family;

c) The Mother and children lived frugally following the separation;

d) The Mother continues to carry debt from maintaining the home and providing for the children;

e) The Mother did not have another partner that contributed to parenting or finances;

f) The Mother has functioned essentially as a sole parent since 2016 and did not receive any respite when the Father failed to exercise his parenting time;

g) The parties had a 12-year relationship prior to the date of separation, with intermittent periods of co-habitation following the separation; and

h) The Father earned over $123,000 last year and will not suffer financial hardship if spousal support is assessed at the high end of the range.

[95] The Mother has been paid $300 per month in spousal support since March 23, 2006. The Mother submits that using the high end of the range, she has been overpaid $14,388 in spousal support. The Father’s spousal support overpayment calculation was lower at $10,148, as he limited his calculations for retroactive child support payments to 2012 using the mid-portion of the range. I also note that the Father does not provide a calculation of his overpayment of spousal support retroactive to March 2006 using the high end of the range, but he provides a calculation of an overpayment of $32,348 retroactive to March 23, 2006, using mid-range spousal support.

[96] Having determined that the Mother is retroactively entitled to spousal support at the high end of the range, I find that the Father has overpaid the Mother $14,388 in spousal support.

[97] The Mother is now financially self sufficient and has limited financial responsibilities regarding her adult children. The Father is no longer required to pay the Mother spousal or child support.

[98] The spousal support overpayment made to the Mother of $14,388 is to be deducted from the child support payment owed by the Father, for a net total of $88,268 - $14,388 = $73,880. Interest shall be paid on this amount calculated at 5% retroactive to March 2006, as per the March 23, 2006 Order.

Reimbursement of Tax Penalty to the Mother

[99] The Father’s delinquent support payments caused the Mother to have a tax liability in 2020 which resulted in an additional tax payment by her of $1,858.20. The Father is not required to reimburse the Mother for this expense. The Mother had the option of re-filing her tax returns for these years to spread the additional income throughout the years and chose not to do so.

CONCLUSION

[100] I make the following orders:

a) The Father is to pay the Mother child support totaling $88,268 minus the spousal support overpayment of $14,338, for a net amount owed to the Mother totaling $73,880;

b) The Father is to pay the Mother prejudgment interest on the $73,880 owed to her under section 128 of the Courts of Justice Act. If the parties are unable to agree upon the quantum of prejudgment interest owed, each party shall provide a one page interest calculation by July 10, 2024 emailed to my judicial assistant at Bihara.wijewardena@ontario.ca;

c) The Mother is permitted to request reimbursement from the Father for s.7 expenses retroactive to October 22, 2018;

d) The Father is not required to reimburse the Mother $1,858.20 for the tax penalty she incurred in 2020;

e) Child support shall terminate as of May 31, 2024 (with s.7 expenses still to be addressed);

f) Spousal support shall terminate as of May 31, 2024; and

g) The parties are encouraged to attempt to resolve the issue of costs incurred to date given the divided success of the trial. If the parties cannot agree upon costs, the costs of this trial shall be reserved to the conclusion of the trial.

Wilkinson J. Released: July 03, 2024