Court File and Parties

CITATION: B.H.H. v. D.H., 2024 ONSC 4761 COURT FILE NO.: FS-24-00040399-0000 DATE: 20240826 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: B.H.H., Applicant AND: D.H., Respondent

BEFORE: Mathen J.

COUNSEL: Angi Tomiris Panzaru, for the Applicant Denise Badley, for the Respondent

HEARD: August 15, 2024

Endorsement

[1] The parties appeared before me at a motion on August 15, 2024. These are my reasons.

[2] The Applicant mother seeks the following:

a. An Order that the Respondent shall pay on-going child support to the Applicant based on an imputed annual income of $86,525. b. An Order that the Respondent shall pay retroactive child support at least for three years. c. An Order that the Respondent pay to the Applicant 75% of the children’s section 7 expenses. d. An Order that the Respondent shall pay to the Applicant a 75% share of the $9,900 medical fees paid by the Applicant for the orthodontic treatment for two of the children. e. Costs.

[3] The parties never married but, over a ten-year period, had four children who are eighteen, fifteen, thirteen and seven years old. The Applicant mother lists the date of separation as 2015. The Respondent father deposes that the parties’ relationship was “casual” and never intended to produce children.

[4] According to the mother, the father has never paid child support. She alleges the Respondent failed to provide adequate financial disclosure. She believes that he owns foreign property and bank accounts. However, her income calculations for the Respondent are based on his assets in Canada.

[5] The father deposed the following:

a. Contrary to the claim that he has never paid child support, the parties agreed that he would give the Applicant cash to avoid impacting her social assistance payments. b. He earns $14,000 a year as a cab-driver for Co-op Cabs. c. He owns no foreign property or bank accounts. d. Shortly before the motion, he provided an itemized response to the Applicant’s request for disclosure. In his response he swears that a number of the requested items are inapplicable. e. He suffers from numerous serious health issues. He attached a doctor’s note indicating a need for him to work reduced hours for the foreseeable future.

[6] The issues for me on this motion are:

a. Should I impute income to the Respondent and, if so, how much and for which period of time? b. Does the Respondent owe retroactive child support and, if so, how much? c. What is the Respondent’s proper share of section 7 expenses? d. How much does the Respondent owe for retroactive section 7 expenses? e. Is either party entitled to costs?

Brief Conclusion

[7] The Respondent’s income for 2024 shall be imputed to $60,000. This is based, in part, on the evidence of the Respondent’s Bank Statements and a Statement of Business or Professional Activities.

[8] I am not persuaded by the Respondent’s argument that his expenses take up more than 60% of his gross income.

[9] The Respondent shall pay table child support for the four children of the marriage. At present, this includes the oldest child who lives with the Applicant and attends high school full time.

[10] The question of how much income the Respondent earned prior to January 1, 2024 is more complicated and may require a trial to resolve. For the time being, the Court imputes to the Respondent an income of $21,500 per year, on which amount he shall pay retroactive child support for the last three years.

[11] I accept that the Applicant mother has paid $9,900 in orthodontic expenses. Based on the inconclusive evidence regarding the Respondent’s income prior to 2024, however, I cannot hold the Respondent responsible for 75% of those costs. Instead, and in part drawing an adverse inference from the Respondent’s incomplete disclosure, I order the Respondent to pay 50% of these costs.

[12] Subject to further order of this Court, the Respondent shall henceforth pay 70% of the ongoing orthodontic costs of $300 a month.

[13] The Applicant is entitled to full recovery of her costs.

Background

[14] The four children all live with the Applicant in her care. The Applicant works full-time earning $28,000 per year.

[15] The Respondent is a taxi driver, with his own license, working for the Co-op Cabs taxi brokerage. His income is in dispute.

[16] In an endorsement dated May 6, Justice Nakonechny ordered the parties to exchange requests for information by May 10 and respond with thirty days.

[17] On consent of the parties, on June 20, Justice Des Rosiers set monthly child support of $200 on an acknowledged income of $17,100. She noted that the Respondent’s documents indicated an income of at least $21,500 which would equate to child support of $453 per month. She also ordered the Respondent to not deplete his assets pending final resolution, and to respond to the still outstanding request for information within ten days.

[18] In his sworn affidavit filed for this motion, the Respondent did reply to each item requested by the Applicant. In some cases, he denied having any relevant documents. In others, he indicated that work was continuing to obtain them. However, at the hearing Respondent’s counsel stated that no further information was expected.

[19] The Respondent appended to his sworn affidavit a doctor’s note dated July 3, 2024. The note’s substantive portion states in its entirety:

“Modified hours/Regular Duties – Indefinitely Medical reason”

[20] The Applicant attached as Exhibit “C” to her August 6 Affidavit bank statements for the Respondent’s BMO Account ending *44. These statements, which cover the period December 16, 2023 – May 17, 2024, show regular deposits from Co-op Cabs totaling $32,552.54. The Applicant averages these to reach a monthly income of $6,510.48. Exhibit “D” to the Applicant’s Affidavit consists of Bank Statements from a CIBC account for the period October 1, 2023 – May 2, 2024. These show numerous cash deposits every month. On the basis of this information, the Applicant concludes that the Respondent has an annual income of between $86,000 and $91,000.

[21] The Respondent appended to his sworn Affidavit a Statement of Business or Professional Activities covering three months from February 1, 2024 to April 30, 2024. This Statement was prepared by Alpha Accounting Services. It asserts the following:

a. The Respondent is a 100% owner of a business in his name. b. Gross sales for the three-month period were $14,960. c. Expenses for the three-month period were $10,656 consisting of the following: i. meals and entertainment $1600; ii. insurance $1515; iii. professional fees $150; iv. repairs and maintenance $1800; v. fleet fee $1779; vi. fuel $3500; vii. telephone $132; viii. car wash $180; d. No supporting documentation was provided for any of the above expenses. e. The Statement therefore asserts a net income for the entire three-month period of $4320.

Law and Analysis

[22] A parent has an obligation to support his or her dependent children: Family Law Act, R.S.O. 1990, c. F.3, s. 31(1). A court is mandated to order child support payments in accordance with the appropriate child support guidelines, for the benefit of the child: Family Law Act, supra, s. 33(1)–(2), (7), (11)–(15); s.34(1).

[23] The presumptive quantum of support is the amount set out in the Child Support Guidelines, O.Reg. 391/97, s. 3(1).

[24] A Court may make an order requiring a parent to contribute to a child’s “special” expenses: Child Support Guidelines, supra, section 7(1).

[25] In court proceedings, parties face numerous obligations to provide prompt and full financial disclosure: Family Law Rules, O. Reg. 114/99, r. 13(1)–(1.1), (3.1)–(3.2), (5.0.2), (7).

[26] A payor spouse has an ongoing obligation to disclose their income so that any child support payments properly reflect the amount owing under the Guidelines: Child Support Guidelines, supra, s. 24.1, s. 13(g).

[27] Where a party fails to comply with the disclosure provisions of the Child Support Guidelines, the possible consequences to that party include:

a. immediate judgment b. drawing of an adverse inference c. striking out of pleadings d. a contempt finding e. imputation of income f. costs on a full indemnity basis

Child Support Guidelines, supra, s. 19(1)(f), s. 22-24.

[28] Similar consequences may flow from failing to comply with a disclosure order under the Family Law Rules: Family Law Rules, r. 1(8)-(8.1).

[29] I find that the Respondent has not adequately complied with his disclosure obligations. He did submit some disclosure for this motion, including an itemized response, which was helpful. But there is a continued gap in his financial statements during periods when he had obligations to support his four children.

[30] The Respondent makes a number of assertions about child support. He cites the existence of an agreement between the parties for cash or direct payments; his current medical condition; and the fact that much of his gross revenue is devoted to his business expenses.

[31] I acknowledge that the Respondent has supported some of these claims via a sworn Affidavit. Nevertheless, for the following reasons, I am not persuaded by the Respondent’s arguments:

a. I reject the Respondent’s bare assertion that there was an agreement between the parties to avoid the regular process of child support payments. The Applicant in her sworn statement says the Respondent has not provided meaningful support. b. While I accept that the Respondent has health challenges, a medical certificate consisting of fewer than 10 words is insufficient to establish a reduced capacity, indefinitely, to earn an income. My skepticism is heightened by the fact that the financial documents filed to date do not substantiate such reduced earnings. c. The Respondent’s Statement of Business or Professional Activities has no supporting documentation for the very high expenses claimed against his gross earnings.

[32] I am mindful that I cannot impute an income arbitrarily. I find, however, that I may rely on the Respondent’s gross expenses listed in his Statement of Business of Professional Activities. On this basis I find it appropriate to impute to the Respondent an annual income for 2024 of $60,000. At the hearing, counsel for the Applicant offered this amount as an alternative, albeit lower than what she was asking for.

[33] Due to the incomplete disclosure in this case, I am unable to confidently impute the same income prior to January 1, 2024.

[34] It is indisputable that the Respondent owes retroactive child support for at least the last three years. This is a right owing to his children that the Court must enforce.

[35] The Respondent attests that he has an annual income of $14,000. At the June 20 case conference, Justice Des Rosiers noted that the Respondent appeared to have an annual of at least $21,500. I believe this is an entirely reasonable amount to impute. It is significantly lower than the Ontario minimum wage. It is supported by the fact that, in addition to earned income, the Respondent’s CIBC bank account shows regular cash deposits of many hundreds of dollars between October 2023 and January 2024.

[36] Therefore, for the purpose of ascertaining retroactive child support, I will impute to the Respondent an annual income of $21,500. This imputation shall apply to the three years prior to the commencement of these proceedings in January 2024.

[37] For the period prior to January 1, 2024, subject to further order of this Court the Respondent shall pay 50% of the children’s section 7 expenses. It is true that under the income I have imputed to him, the Respondent ordinarily would be responsible for somewhat less than 50%. In the circumstances, however, which includes inadequate disclosure, I find it just and appropriate to split these equally between the parties.

[38] The Respondent shall be responsible for 70% of section 7 expenses incurred after January 1, 2024. This proportion is based on his imputed income of $60,000 compared to the Applicant’s current income of $28,000.

[39] The Applicant has prevailed on this motion and is entitled to her costs.

[40] In deciding on a quantum of costs, I am to consider:

a. the importance, complexity or difficulty of the issues; b. the reasonableness or unreasonableness of each party’s behaviour in the case; c. the lawyer’s rates; d. the time properly spent on the case; e. expenses properly paid or payable; and f. any other relevant matter.

Family Law Rules, O. Reg. 114/99, r. 24(11)

[41] This case is not complex. The parties are of modest means. The Respondent’s status as a taxi driver, however, made it essential for him to provide full and prompt disclosure of his sources of income and expenses.

[42] The Respondent failed to comply with prior disclosure orders in a timely manner.

[43] The Applicant was forced to expend costs on a motion that should have not been necessary. Having reviewed her costs, I find them to be reasonable.

[44] Timely disclosure is the engine oil of the family law machine. Parties who fail to respect it must face consequences.

[45] The Applicant is entitled to her costs on a full indemnity basis.

Order

[46] In conclusion, I make the following order:

[47] Subject to further order of this Court, beginning September 1, 2024, and the first day of every month thereafter the Respondent shall pay table child support of $1,406. This amount is based on an imputed income of $60,000 applied to the four dependent children of the marriage.

[48] Subject to further order of this Court, the Respondent shall pay retroactive child support as follows:

a. For the period January 1, 2024 to August 31, 2024: $11,248. b. For the calendar years 2023, 2022 and 2021, table child support based on an imputed income of $21,500.

[49] The Respondent shall pay to the Applicant $4,950 in section 7 expenses for orthodontic care incurred prior to the commencement of these proceedings.

[50] Subject to further order of this Court, the Respondent shall pay the Applicant $210 per month for orthodontic care.

[51] A Support Deduction Order shall issue.

[52] Unless the order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.

[53] The Respondent shall pay to the Applicant $6,463.60, inclusive of disbursements and HST, representing costs on a full indemnity basis.

Mathen J. Date: August 26, 2024