COURT FILE NO.: FS-21-00026317-0000 DATE: 20240129
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAHROKH ELYASIAN Applicant – and – MINA ELYASIAN Respondent
Self-Represented Applicant Self-Represented Respondent
HEARD: October 3, 4, 5, 6 and 10, 2023; Written Submissions: October 13 and 18, 2023
VELLA J.
AMENDED REASONS FOR JUDGMENT
Introduction
[1] The Applicant, Shahrokh (Isaac) Elyasian (the “Father” or “Isaac”), seeks various parenting and child support orders.
[2] Both parties were self represented at trial but had legal representation at some point earlier in the proceedings.
[3] The orders sought by the Father are:
(a) An order (declaration) that the children of the marriage have resided primarily with the Father since July 1, 2021; (b) An order under the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), that the Respondent, Mina Elyasian (the “Mother” or “Mina”), pay retroactive table child support in the amount of $26,182 for the period of July 1, 2021 to August 31, 2023; (c) An order under the FLA that commencing September 1, 2023, the Mother pay ongoing table child support of $768 per month, based on an imputed annual income of $60,000, and based on the youngest residing primarily with the Father and the two eldest residing with the Father during the summer months; (d) An order that the Mother pay $8,156 for expenses under s. 7 of the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”) as arrears for the period from July 21, 2021 to September 2023 (August 31, 2023); (e) An order that commencing September 1, 2023, the Mother pay s. 7 expenses fixed at $1,000 per month for the children’s post-secondary education costs; (f) An order that commencing September 1, 2023, Hannah’s high school tuition, the children’s medical and dental expenses, and tutoring costs will be shared on an equal basis between the parties. Each party will provide their 50 percent share directly to the service provider; (g) An order that the Father is entitled to claim the Canada Child Benefit retroactive to July 1, 2021; (h) A Support Deduction Order; (i) Costs and interest.
[4] The orders sought by the Mother are:
(a) Joint decision-making authority consistent with the parties’ Separation Agreement and s. 16 of the Divorce Act, R.S.C., 1985, c. 3; (b) A shared parenting schedule on a 50/50 basis, or alternatively, a schedule determined by this Honourable Court under s. 16 of the Divorce Act; (c) An award of arrears of child support and s. 7 expenses due under the Separation Agreement; (d) An order that the Mother and Father shall pay child support in accordance with s. 9 of the Guidelines; (e) An order that they share the s. 7 expenses on a basis proportionate to their incomes or imputed incomes pursuant to the Guidelines and s. 15.2 of the Divorce Act; (f) Costs and interest.
Background
[5] The Father was born on November 22, 1968, and the Mother was born on November 20, 1974.
[6] The parties were married on July 6, 1997 and separated in January 2014. The parties divorced on September 14, 2015.
[7] The parties have three children: Isabel, born January 24, 2003 and attending Queen’s University full time; Jacob, born April 7, 2005 and attending Queen’s University full time; Hannah, born September 24, 2009 and in grade 9 at high school. The two eldest children have obtained the age of majority.
[8] From 2018 to July 1, 2021, the children lived full time with the Mother, and she was the primary caregiver, as admitted by the Father in cross-examination.
[9] Since July 2021, the three children have resided primarily with the Father. The children have, to varying degrees, had parenting time with the Mother, however.
[10] The Father is self-employed as a tailor, while the Mother is currently unemployed.
[11] The parties entered into a Separation Agreement dated July 9, 2015. It is a comprehensive agreement and addressed all issues, including child support, parenting, spousal support and equalization. The parties each had independent legal advice, though the Separation Agreement was drafted by the lawyer retained by the Father.
[12] The child support provisions of the Separation Agreement were filed with the Ontario Court of Justice on July 5, 2021 and thus, are enforceable and can be changed as if it is a court order.
[13] The child support provisions have not been changed by way of mutual agreement or court order.
[14] The Separation Agreement is not challenged by either party. Rather, the Father says that the child support provisions, which were premised on the shared parenting provision in the Separation Agreement, no longer apply because the children have been living with him (the two eldest during the summer), and thus, there is no shared parenting in reality. The Mother disagrees with the Father’s position and submits that the Separation Agreement is in full force and effect and ought not be altered.
Issues
[15] The issues for determination are:
(a) What form of decision making is in the best interests of the youngest child, Hannah? (b) What parenting arrangement is in Hannah’s best interests? (c) Are there arrears of child support and s. 7 expenses owed by the Father under the Separation Agreement to the end of June 2021? (d) Is the Mother intentionally unemployed such that income should be imputed to her? (e) Has there been a material change in circumstances warranting a change in the child support and s. 7 provisions of the Separation Agreement as of July 1, 2021? (f) What is the appropriate order for child support and s. 7 expenses? (g) Should the child support and s. 7 expenses be ordered retroactively? (h) Who is entitled to the Canada Child Benefit?
Result
[16] For the reasons that follow, the parents shall have joint decision-making authority over Hannah, consistent with the terms of the Separation Agreement, and shared parenting time with Hannah on a week about (50/50) basis. This means that on week one, the Father will have Hannah from Saturday to Friday inclusive; on week two, the Mother will have Hannah from Saturday to Friday inclusive; on week three, the Father will have Hannah; on week four, the Mother will have Hannah, and so forth. All other parenting matters under the Separation Agreement remain in force, including the holiday schedule, unless explicitly changed by these Reasons.
[17] The evidentiary record does not permit me to make a finding as to whether there are arrears under the Separation Agreement to (but not including) July 1, 2021. The burden was on the Mother to prove arrears, and she has not discharged that burden based on the evidentiary record before me.
[18] I find that the Mother has been intentionally unemployed as of January 1, 2023, and I impute an annual income to her of $31,546. This amount is based on full-time employment for 50 weeks a year, earning minimum wage.
[19] The Father has proven a material change of circumstances warranting a variation to the child support and s. 7 expense provisions of the Separation Agreement as of July 1, 2021, by virtue of the children living at the Father’s house as their primary residence.
[20] The Father gave effective notice of his request to change the child support and s. 7 expenses, at the latest, when he served his notice of application in or around late 2021. Furthermore, the Mother ought reasonably to have known that when the children moved in with the Father as their primary residence that the child support and s. 7 expenses would be changed to accord with this new reality. The Mother owes child support to the Father from July 1, 2021 to present, based on her line 15000 income, as reported on her notice of assessment for 2021. That sum is imputed for her 2022 income as well. The Mother also owes child support for 2023 based on her imputed income of $31,546. The Mother owes arrears of child support in the sum of $11,268.
[21] Beginning on February 1, 2024, the parties will have a shared parenting schedule for Hannah, and Jacob and Isabel will likely spend the summer months with their Father. The Father’s off set table support is $113 per month based on his 2022 line 15000 income of $55,211 and the Mother’s imputed income of $31,546. The Father shall pay the Mother the off-set amount of $113 per month as child support as long as the children are eligible for it. However, the parties shall exchange their income tax returns (with schedules), notices of assessments and, in the case of the Father, his corporate tax returns, notices of assessment, and year end financial statements for his business by July 1st of each year. The table child support amount may be adjusted accordingly.
[22] In terms of s. 7 expenses from July 1, 2021 to December 31, 2023, the expenses are to be allocated in an amount proportionate to the respective incomes of the parents. Since July 1, 2021, the Mother has paid $30,428.87 as recoverable s. 7 expenses, and the Father has paid $54,318.85 as recoverable s. 7 expenses. The proportionate amount is approximately one third to two thirds, and so the Father will pay a net sum of $2,179.63 to the Mother by way of arrears of s. 7 expenses. This amount shall be set off against the Mother’s outstanding child support arrears.
[23] On a go forward basis, the s. 7 expenses will be paid in proportion to the respective incomes of the Mother and Father. Hannah’s private high school tuition, and the older children’s university costs (residence, tuition, books, less any grants received by the children and their own financial contribution) will be treated as s. 7 expenses.
[24] The Father was entitled to apply for the Canada Child Benefit once the children moved in with him as their primary residence on July 1, 2021. The Mother was no longer eligible for the Canada Child Benefit once that event occurred. Accordingly, the Father has no liability to the Mother in relation to the Canada Revenue Agency’s (the “CRA”) demand that she pay back what she received on and after July 1, 2021. However, with shared parenting, each parent can claim 50 percent of the Canada Child Benefit from February 1, 2024.
Preliminary Comments re Trial Procedure
[25] An important function of the court is to ensure that the trial procedure is fair and balanced so that parties are able to fairly advance their positions and obtain a judgment based on the merits of the case. It is not appropriate for a trial judge to simply swear in the witness and sit back and listen. However, it is equally important that the trial judge maintain a neutral and impartial stance, both in appearance and actuality: Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, at paras. 149-51. There is sometimes a fine line between ensuring that the key evidence is before the case and constructing the case. I was alert to not crossing that line. It is ultimately up to the parties to determine what positions they will take and how they wish to advance those positions.
[26] The Court of Appeal has emphasized this role in the context of trials where one or more litigant is self represented. The trial judge is the gatekeeper and controls the court process.
[27] The court is instructed by the Canadian Judicial Council’s Statement of Principles on Self-Represented Litigants and Accused Persons, 2006 (the “Principles”). The Principles provide guidance to trial judges, and also explain the duties of self-represented litigants to become familiar with the legal process with which they are engaged, to prepare their own case, and to be respectful. The Supreme Court of Canada in its decision, Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470, at para. 4, endorses the Principles.
[28] I adopted the following guidelines in presiding over this trial:
(a) Explained the process and handed out a document entitled “Ontario Superior Court of Justice: Overview of the Trial Process” (marked as Exhibit A); (b) Inquired as to whether both parties understood the process and procedure; (c) Provided information about the law and evidentiary requirements (including providing excerpts from the Divorce Act (marked as Exhibit M)), and invited the parties to read specific leading cases [^1] relevant to the issues that they wished me to rule on while emphasizing that they should research and rely on any other caselaw they felt relevant to their respective positions; (d) Questioned the Father and Mother once they had provided their evidence in chief to ensure that key documents were tendered by way of exhibits, [^2] and to ensure, in a neutral and impartial way, that the parties provided their basic positions concerning each of the issues advanced in their viva voce evidence. The parties were each cross-examined after I concluded my questioning: Principles, B.4; Cicciarella v. Cicciarella (2009), 252 O.A.C. 156 (Ont. Div. Ct.), at paras. 35-45; (e) The parties were provided the weekend to prepare their respective closing submissions after receiving further direction from me.
ANALYSIS
The Separation Agreement
[29] The Separation Agreement is the starting point for this analysis, as it sets out what the parties determined to be a full and final reconciliation of all the matters flowing from the marriage breakdown, including what they believed to be in the best interests of the children. Neither party challenges the validity of the Separation Agreement, and neither seeks to set it aside. Rather, the Father seeks to vary the child support, s. 7 expenses, and Canada Child Benefit provisions, while the Mother wishes to hold the Father to those provisions.
[30] Specific provisions of the Separation Agreement will be referenced throughout the Reasons.
[31] Notwithstanding the existence of a binding and enforceable Separation Agreement, the threshold question under s. 17 of the Divorce Act is whether there has been a material change of circumstances.
Issues 1 and 2: Decision Making and Parenting Time
[32] Section 16(1) of the Divorce Act provides that in making an order for parenting time or decision-making responsibility, the court shall take into consideration only the best interests of the child.
[33] Section 16(2) states that when considering the factors in s. 16(3) to determine the best interests of the child, the primary consideration is the child’s physical, emotional, and psychological safety, security, and well-being.
[34] Section 16(3) sets out a non-exhaustive list of circumstances the court shall consider in determining the child’s best interests:
(a) Child’s needs given the age and stage of development, such as the child’s need for stability; (b) The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life, (c) Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse; (d) The history of the care of the child; (e) The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained; (f) The child’s cultural, linguistic, religious and spiritual upbringing and heritage including Indigenous upbringing and heritage; (g) Any plans for the child’s care; (h) The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child; (i) The ability and willingness of each person of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child; (j) Any family violence and its impact on, amongst other things; (i) The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and, (ii) The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and (h) Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
[35] Section 16(4) sets out a list of specific factors the court shall take into account in considering the impact of family violence. However, there were no allegations of family violence in this matter.
[36] In allocating parenting time, the court will give effect to the principle that the child should have the maximum time with each parent that is consistent with the child’s best interests: Knapp v. Knapp, 2021 ONCA 305, 155 O.R. (3d) 721, at para. 34.
[37] Both parents agree that the eldest children are now beyond the reach of parenting orders, as they are both at, or beyond, the age of majority. They agree that no order should issue with respect to decision-making authority or a parenting schedule for them. There should be an “open door policy” allowing Isabel and Jacob to make their own decisions, including how much time they wish to spend with each parent. Both parents agree that the eldest children’s wishes should be respected. However, while the Mother says there should be equal parenting time and joint decision-making authority with respect to Hannah, the Father states that Hannah should remain with him full time and that he should have sole decision-making authority over her.
[38] Accordingly, I will focus on the youngest child, Hannah, who started grade 9 this year.
[39] Much of the Mother’s evidence related to the factors under s. 16. In contrast, there was relatively little evidence from the Father concerning these factors. The thrust of the Father’s evidence was that the children had “voted with their feet”. He focussed in his evidence on the financial aspects of the case. However, aside from the affidavit of the eldest daughter, there was no evidence concerning the views and preferences of the children, other than through the Mother and Father and, to a lesser extent, the maternal grandmother, who testified.
[40] The evidence is undisputed that immediately following separation, the children lived with the Mother. This is because the Father determined that he must leave the marriage, and he left the family to forge a new path for himself.
[41] According to the Father, in the years following separation, he struggled to afford separate places for his tailoring business, Isaac Ely Bespoke Inc, and a personal residence. He initially lived in a small condominium unit. He then moved into his office space, which had a kitchen and washroom but no bathtub. It was not a suitable place for the children to live or sleep over, as he readily admitted. From July 1, 2021 to June 30, 2022, he rented a unit within a house at 3 Lois Avenue, and the children began sleeping at this residence most of the time and with the Mother some of the time. In the summer of 2022, he moved to another rental at 38 Hillhurst Street, and after that, he rented a house in Hoggs Hollow at 70 Ivor Road from September 2022 to the present. The children have their own bedrooms at 70 Ivor Road and spend most of their time there (recognizing that Isabel and Jacob are now full-time university students and live in Kingston for the academic year). The Father can afford this house because he has moved his business into the basement, where he does his work and has a showroom for customers. He occupies this house as a tenant and had a one-year fixed term lease that expired in August 2023. He continues to live at this residence as a month-to-month tenant.
[42] The Mother’s evidence, supported by the maternal grandmother, Svetlana Mikahilov, is that since July 2021, the children, and particularly the two youngest, have spent time at their grandmother’s home, where the Mother is also living. The two youngest have also spent time with the Mother at her boyfriend’s cottage. The Father agrees with this.
[43] The Mother’s unchallenged evidence is that prior to July 1, 2021, she was most engaged in the children’s day-to-day activities, but that she and the Father made major decisions together. These included the decision to send the children to a Jewish community elementary and high school notwithstanding the associated cost (much of which was subsidized by the school itself). Hannah continues to attend this school, which is within walking distance from the Mother’s current residence.
[44] Another example of the parties’ joint decision making was the decision to establish a Canadian Scholarship Trust Fund (“CST”) to assist in funding the children’s post-secondary education. The parties agree that this fund was established using “family money” generated by the “family business” (now the Father’s sole business, pursuant to the Mother’s agreement to waive her interest in that business under the terms of the Separation Agreement). The amount of family money contributed as of December 31, 2014 was $26,523.57, and the CST was worth $54,144.38 as of January 1, 2021, after some withdrawals for Isabel’s university expenses. These sums reflect initial contributions from the family money, then some from Isaac, growth in the capital investments, plus a Canada Education Savings Grant of $4,380. The Father admitted that he unilaterally removed the Mother’s name from this fund after separation. He justified this decision by the fact that she was no longer contributing to this fund. However, it was clear from cross-examination of the Father that the CST was the Mother’s idea and that she had a better handle on this fund than the Father.
[45] The Father has also opened an RESP for Jacob and Hannah after separation, and it is currently worth approximately $90,000.
[46] It is observed that the Father’s ability to contribute to the CST and RESP post-separation seems disproportionate to what his reported modest incomes were. However, the Father’s reported income was not challenged, and I did not have the evidentiary basis upon which to make a determination of what the Father’s income was, other than as reported on his line 15000 income tax returns and his notices of assessments. The corporate tax and year end documents did not assist.
[47] The Mother took the children to most of their dental appointments and was most engaged in the children’s development at school, including in independent educational plans and psychological assessments, while the Father concentrated on the family business. The Father acknowledged that the Mother paid the children’s dental expenses between 2016 and 2019.
[48] Under cross-examination, the Father admitted that up until July 1, 2021, the Mother was the primary caregiver for the children.
[49] The Mother demonstrated that subsequent to July 1, 2021, she continues to play a caregiving role particularly for Hannah and Jacob. For example, the Mother was still in charge of applying for their passports and health cards. This is consistent with the terms of the Separation Agreement.
[50] The Father also agreed that many of the parenting-related provisions in the Separation Agreement are properly in place; for example, the parents must prefer the children’s interests to their own, encourage the children to have a good relationship with each of the parents, and refrain from making disparaging or negative remarks to the children about the other.
[51] The Mother was particularly involved in the children’s education, being primarily involved with school meetings and seeking subsidies. She continues to take the lead with Hannah’s high school program.
[52] Isabel’s affidavit was entered into evidence. The Mother declined to cross-examine Isabel, who is attending university. The Mother testified that she did not want the children to testify; she did not believe it to be in their best interests to have to effectively take sides in this case.
[53] Isabel’s affidavit confirms that she, together with Jacob and Hannah, have lived “primarily” with their Father since July 1, 2021. She deposed that the reason why they went to live with their Father was because they did not want to live at the maternal grandparents’ home. Without providing any specifics, she deposed that it had been “difficult for us at our grandparents” and “I did not want to bring back the same memories”.
[54] She confirmed that she started university at Queen’s University in September 2021 and so lives in Kingston during the academic year, but whenever she is home, she would live with the Father. Her siblings were also there. She deposed that in the summer of 2022, Jacob was at overnight camp.
[55] She also deposed that during the 2022-2023 school year, Jacob stayed overnight at their maternal grandparents’ home on Mondays and Wednesdays. She does not indicate whether Hannah also stayed overnight. She deposed that her Mother would pick them up from the Father’s house for dinner and return them after dinner.
[56] Isabel’s affidavit is not very probative regarding Hannah’s pattern of interaction with the Mother and reveals nothing about Hannah’s views and preferences. As she acknowledged, she has been at university, and not in Toronto, during the academic year since September 2021.
[57] The maternal grandmother, Svetlana Mikhailov, testified that she has a good and loving relationship with the children. She confirmed that they have stayed overnight at her house and that they celebrate Jewish holidays and Christian holidays (because her son-in-law is Christian) together. She lives in the house with her husband (the grandfather) and the Mother. There are four bedrooms, and one each is set aside for Jacob and Hannah when they come to spend the night. She acknowledged that she has a challenging relationship with Isabel.
[58] She testified that she and her husband are a strong support for the Mother and the children. For example, they will often pick up Hannah and/or Jacob from school and have dinner with them. They did this during the trial, when the Father neglected to have arrangements in place to pick up Hannah after school. Jacob worked for her son (his uncle) in construction last summer.
[59] She testified that when the Father comes to pick up Jacob and/or Hannah, he stays in the car parked on the street and waits for them to come out. He does not drive into the driveway and never comes out of the car to interact with her.
[60] She acknowledged the financial challenges faced by the Mother post-separation, requiring her and the children to stay with her until the Mother could find a place to live. Eventually, the Mother could not sustain her own residence financially. In January 2022, the Mother returned to live with her and continues to do so.
[61] In cross-examination, the Father showed her a letter that she signed. In it, she stated that the children were residing with her since 2021. However, she clarified that what she meant was that they have a key to her house and are welcome to come and go whenever they want.
[62] From the maternal grandmother’s evidence, it is clear that the Mother has a strong support system for Hannah and that Hannah is used to sleeping over and staying at the maternal grandparents’ home with her Mother. It is also clear that Hannah has the benefit of the Mother’s extended family and attends family holidays and celebrations with them.
[63] Based on the evidence, I find as a fact that the children lived primarily with the Father from July 1, 2021 to the present, with the qualification that the eldest has been attending Queen’s University in Kingston, living in residence or rented premises, since September 2021, and the son started Queen’s University in September 2023, full time, and is living in residence in Kingston. I further find that while the eldest two have lived primarily with the Father during the two summer months, the son was in summer camp for one month of the summer.
[64] However, prior to July 1, 2021, all three children lived primarily, and virtually full time, with the Mother since the date of separation. This means the children lived with the Mother for over five years when they were minors.
[65] I find that it is in Hannah’s best interests to have shared parenting time with the Mother and Father for the following reasons:
(a) Hannah’s age and stage of development: I accept the Mother’s evidence, uncontradicted by the Father, that Hannah is at an age when she will benefit and need the advice of her Mother. I accept the Mother’s evidence, unchallenged by the Father, that Hannah is already seeking her Mother’s advice and guidance on matters confronting young, female teenagers. (b) Hannah’s relationship with her parents and extended family: There is no evidence suggesting that Hannah has anything but a strong relationship with both of her parents. It is also clear on the evidence before me that she has a strong bond with her maternal grandparents and her maternal aunts, uncles and cousins. There is no extended family in Canada on the Father’s side and no evidence as to what relationship, if any, Hannah has with her Father’s extended family. To the contrary, the evidence is that the Father is not close to his extended family. (c) It is clear that the Mother is willing to support the development and relationship between Hannah and her Father. (d) The long-term history of care of Hannah favours a shared parenting arrangement. (e) Hannah’s views and preferences were not before the court. (f) Both parents concur that Hannah is being raised in the Jewish faith. (g) No detailed plans were provided for Hannah’s care. However, I infer from the evidence that both parents are able to care for Hannah, though the Mother has an extended family support system, and the Father does not. Nonetheless, given Hannah’s age, she is not in need of constant supervision. (h) I infer from the evidence that the parents are able to communicate with each other in relation to Hannah’s care and well-being. There is no indication of significant disagreements, with the exception of Hannah’s ongoing attendance at Jewish community school. The Father objects, but the basis of his objection is purely financial. (i) There is no evidence of family violence that would impact Hannah’s best interests.
[66] In my view, it is in Hannah’s best interests that she spend equal time with the Mother and the Father. Accordingly, she will live with each of her parents on a week about basis, effective February 1, 2024. In other words, Hannah will live with the Mother on week one, and the Father on week two, and so on.
[67] Under the Separation Agreement, the parents agreed that they would have shared parenting time and joint decision-making authority over the children, as it is in the children’s best interests. I am not persuaded that a change in this arrangement would be in Hannah’s best interests. Accordingly, the parties will have joint decision-making authority in relation to Hannah. The joint decision-making authority is without prejudice to Hannah’s own independent decision-making rights as they may accrue (e.g., control over her confidential medical information with her regulated health care professional).
[68] The holiday schedule set out in section 4.3 of the Separation Agreement shall be maintained in relation to Hannah, as will the balance of the parenting provisions under s. 4, save s. 4.2. There was no request to change the balance of the parenting provisions (with the exception of the decision-making provision in s. 4.7) and they are in her best interests. Section 4.4 of the Separation Agreement also prevail with respect to this new schedule. This schedule can be altered by mutual consent of the parties.
Issue 3: Child Support and s. 7 Expenses Arrears under the Separation Agreement
[69] The Separation Agreement provides the Father is to pay the Mother child support for the three children in the Table amount of $792 per month, based on the Father’s income of $41,688 commencing August 1, 2015.
[70] This was agreed upon notwithstanding the fact that the parents agreed to joint parenting/custody, and that the children would reside 60% of the time with the Mother and 40% of the time with the Father. Indeed in s. 5.3 of the Separation Agreement, it states that this child support will be paid “[n]otwithstanding the parties will have shared custody of the children”. The Father agreed to pay child support notwithstanding the fact that he was to have custody of the children 40% of the year and that he was making less than the Mother.
[71] This apparent anomaly may be explained, as testified by the Mother, by the fact that she waived her interest in the family business (s. 14.1(c) of the Separation Agreement) and would have to start a new career and both waived their respective rights to spousal support (s. 9.4 of the Separation Agreement).
[72] Pursuant to s. 5.6 of the Separation Agreement: “Child support ends for each child when he or she ceases to be a “child” as defined in the Divorce Act. Section 2(1) (b) of the Divorce Act provides,
child of the marriage means a child of 2 spouses or former spouses, who, at the material time,
(a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
[73] The Separation Agreement further provides at s. 5.4 that the Father will contribute the sum of $500 per month, starting August 1, 2015, to the special or extraordinary (s. 7) expenses “in full satisfaction of his obligation to contribute”. The provision acknowledges that the children’s s. 7 expenses are “at least $9,000 per year”. Hence the Mother agreed to pay the s. 7 expenses with the Father’s contribution capped at $500 per month.
[74] Of course these child support and s. 7 expenses provisions of the Separation Agreement, which have been filed with the Ontario Court of Justice and have the force of a final order, can be varied under s. 15.1 the Divorce Act if there is a change of material circumstances. In so doing the court may consider any special provisions of the Separation Agreement and on that basis order child support payable in an amount that is inconsistent with the applicable child support guidelines (s. 15.1(5) of the Divorce Act).
[75] The Father has not attempted to demonstrate that there was a material change of circumstances prior to July 1, 2021 and the Mother did not advance this argument either.
[76] The parties agree that the combined monthly child support and s. 7 expenses contribution owed by the Father under the Separation Agreement was $1,292.00.
[77] The Father admits that his last child support and s. 7 payment was made on May 10, 2021 in the sum of $400. He admits that he did not pay consistently the sum of $1,292.00 on the first of the month between 2015 and 2021. According to his calculations, he overpaid by $763.40 for the period from September 3, 2019 through May 2021. He admits he did not pay anything for June 2021 or thereafter.
[78] According to the Mother’s calculations, for the period from July 2015 through to December 2021, the Father has underpaid the child support and s. 7 expenses by approximately $82,407.50. She explained that she declined to have the child support and s. 7 expenses enforced by FRO because she did not want to hurt the relationship between the Father and their children.
[79] Unfortunately, the evidentiary record does not permit me to make a finding of the total payments made by the Father towards child support and s. 7 expenses from 2015 to the end of May 2021. The chart submitted by the Mother is not evidence, nor is the chart submitted by the Father. The underlying documents that might have supported the various calculations (e.g.: cancelled cheques, bank records showing the requisite withdrawals and/or corresponding deposits) were not tendered at trial as exhibits. [^3]
[80] However, while I find that the Father underpaid his child support and s. 7 obligations in the years immediately post separation based on the Mother’s testimony, the Father’s lack of denial, and the Father’s earnings which fell well below the $42,000 stipulated in the Separation Agreement, I am unable to quantify the amount.
[81] As it was the Mother’s burden to prove arrears under the Separation Agreement for the period from August 1, 2015 to the end of June 2021, and she did not discharge this burden of proof, this part of her claim is dismissed.
Issue 4: Should income be imputed to the Mother?
[82] The Father seeks to impute income to the mother in the annual amount of $60,000 commencing September 1, 2023 based on her last full-time employment, which occurred in 2019.
[83] At trial, the Mother did not seek to impute income to the Father.
[84] The Mother’s line 15000 income as reflected on her notices of assessment are:
(a) 2018: $85,292; [^4] (b) 2019: $59,382 (increased from $38,665 as per footnote 3); (c) 2020: $22,758 (of which $14,000 was from the Canada Emergency Response Benefit (“CERB”)); (d) 2021: $20,600 (comprised of the Canadian Recovery Benefit) (e) 2022: no income tax return or notice of assessment was disclosed or produced at trial.
[85] Section 19(1) (a) of the Guidelines sets out the test for imputing income to a spouse for the purposes of determining child support. It is a discretionary test. The burden is on the Father to establish that the Mother is either intentionally underemployed or unemployed.
[86] As set out in Drygala v. Pauli, at para. 23, the trial judge must consider the following three questions:
(a) Is the spouse intentionally under-employed or unemployed? (b) If so, is the intentional under-employment or unemployed required by her reasonable educational or health needs? (c) If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?
[87] The Mother is precluded from relying on her health as a reason for being unemployed, as she failed to produce her health records, contrary to Justice Kristjanson’s order, and does not rely on educational needs as a reason. Therefore, I will focus on the first and third questions.
[88] As explained by the Court of Appeal in Drygala v. Pauli, at para. 28, “intentionally” does not require a finding of bad faith on the part of the Mother. Rather, “intentionally” means a voluntary act.
[89] Section 1 of the Guidelines sets out four objectives. The first objective “is to establish a fair standard of support for the children to ensure that they benefit from the financial means of both parents after separation”: Drygala v. Pauli, at para. 31.
[90] The other three objectives are:
(a) To reduce conflict and tension between spouses by making the calculation of child support orders more objective; (b) To improve the efficiency of the legal process by giving courts and spouses guidance in setting levels of child support orders and encouraging settlement; and (c) To ensure consistent treatment of spouses and children who are in similar circumstances: Guidelines, s. 1(b), (c).
[91] The test is whether the payor is earning more, or is capable of earning more, income than they claim.
[92] The Mother’s last jobs, before COVID, were with high-end women’s fashion retailers in 2018 and 2019. She testified that she lost her job at Milli’s during COVID and that there were no jobs available due to COVID.
[93] The Mother testified that the women’s fashion retail landscape has changed as a result of COVID. Her former clientele no longer requires as much high-end fashion clothing, as they do not attend their offices as often, preferring to work remotely, and the social events that they used to attend have decreased. She testified that women’s fashion is a “young” person’s game, and she is no longer in that league.
[94] She testified that she has been looking for employment and has been unsuccessful. She did not tender any documentary evidence in support of her assertion, though she did provide disclosure in the course of the litigation.
[95] Under cross-examination, she testified that she left her last retail position at a store called Milli’s because of the transportation between Toronto and Hamilton. She testified that she did not quit, but that it was a mutual decision, and the decision fell on her to leave. She further testified that if the opportunity comes where she can work using her skill set and knowledge and she gets the pay she deserves, she will take the opportunity.
[96] The Mother did not produce any record of employment from Milli’s to show whether she quit or was laid off.
[97] I accept that at the height of the COVID pandemic, the bricks and mortar store retail fashion industry suffered, making it difficult for workers to obtain salesclerk or fashion consultant positions. However, the Mother has not proven what efforts she made to obtain work and the responses she received, except through her testimony. This documentary information was exclusively within her power to bring to court.
[98] Furthermore, it appears that there was a mutual agreement to sever her relationship with Milli’s due to the lengthy commute and the reduction in clientele and sales, which impacted her income.
[99] I am not prepared to impute income to the Mother for 2021. I accept that she qualified for CERB and could not reasonably find work that year.
[100] In 2021, the Mother qualified for and received CERB. Accordingly, her income for child support purposes is as listed at line 15000 of her 2021 Notice of Assessment as $20,600.
[101] I also find that one further year post-COVID is a reasonable period for the Mother to have found full-time employment based on her experience, age, and skill set. However, in light of the Mother’s failure to produce an income tax return or notice of assessment for 2022, I will impute the same level of income to her as she received in 2021.
[102] However, I am satisfied that the Mother has not made reasonable efforts to find employment since December 31, 2022 and therefore is capable of earning more than she is.
[103] Therefore, I will also impute income to the Mother effective January 1, 2023.
[104] In determining quantum, I have considered the following factors: the Mother’s age, experience, skills, formal education, and health. The Mother’s experience has been exclusively in the retail fashion industry. In the early (pre-separation) years, she assisted in the development and growth of the Father’s bespoke tailoring business on the administrative side. She diversified her experience by engaging in consultation and sales in women’s “high end” fashion. In 2018 and then 2019, she had consecutive full-time jobs in this field and made a substantial income each year.
[105] As stated in Drygala v. Pauli, at para. 46, where “the parent does not provide the court with adequate information on the types of jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent’s previous earning history” and can impute a percentage if there is evidence that the parent requires education or has health concerns that reduce their capacity to earn income.
[106] On the other hand, the Father also did not produce evidence regarding comparable positions, and their associated average earnings, that would have been suitable for the Mother, other than pointing to her pre-pandemic earnings.
[107] I have considered the Mother’s earning history insofar as was produced in the evidence, noting that she earned above minimum wage in only two years, and this was pre-pandemic. I accept that the pandemic altered the Mother’s opportunities to earn an income similar to what she was earning immediately before the pandemic, at least through 2023. The Father also has admitted that his own exclusive bespoke tailoring business has suffered post pandemic. It would not be reasonable to impute a pre-pandemic earnings capacity, which is based on the high fashion industry, to the Mother for 2023.
[108] Given her skill and experience in the retail clothing sector as a consultant, I will impute income at full-time employment at minimum wage, as she should have been able to obtain a salesclerk retail job. Even if she is convinced she no longer qualifies for a position commensurate with her immediate pre-pandemic work as a fashion consultant with clientele, there is no reason why she could not have obtained work in the fashion industry as a salesclerk, at minimum. I note that she has a Bachelor of Fine Arts from Ryerson University, now known as Toronto Metropolitan University.
[109] The hourly minimum wage in Ontario is $16.55 effective October 1, 2023, up from $15.50 per hour from October 1, 2022. Based on a 40-hour work week, the income imputed from January 1, 2023 to the end of September 2023 is $542.50 per week, times 37weeks (accounting for two weeks of unpaid vacation), totaling $22,940. From October 1, 2023 to December 31, 2023, the minimum wage is calculated at $579.25, times 13 weeks is $8,606. These two amounts result in a total imputed income of $31,546 for 2023. I have made this finding based on the evidentiary record and judicial notice regarding the minimum hourly wage and full-time average hours in Ontario. Given the gaps in the evidentiary record, this is the best I can do. This should also provide the Mother with the requisite incentive to become employed as soon as possible.
[110] I will emphasize, however, that the Mother should be obtaining work commensurate with her skill set, formal education, and experience, and that this may mean that she needs to find a position that is different from the high fashion consultant position she had pre-pandemic.
Issue Five: Was there a material change in circumstances on July 1, 2021 warranting a variation in the child support and s. 7 expense provisions of the Separation Agreement?
[111] As stated, the child support provisions of the Separation Agreement were filed with the Ontario Court of Justice and therefore are enforceable as if they were embodied in a final order.
[112] Accordingly, the Father must prove that there has been a material change in circumstances warranting a change in the child support and s. 7 expenses reflected in the Separation Agreement retroactive to July 1, 2021.
[113] The Father submits that there was a change in day-to-day living arrangements for the children effective July 1, 2021. The parties transitioned from shared parenting to having the children live primarily with the Father on a full-time basis. This constitutes a material change of circumstances warranting a variation of the child support and s. 7 expenses payable under the Separation Agreement.
[114] I agree.
Change of Material Circumstances Test and Application
[115] Section 17(4) of the Divorce Act provides that a child support order can be varied if a change of circumstances as prescribed by the Guidelines is established. Section 14 of the Guidelines, in turn, provides that where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof may warrant a variation. Similarly, even where the amount of child support sought to be varied does not include a determination in accordance with the table, any change in the condition, means, needs or other circumstances of either parent or of any child who is entitled to support constitutes a change of circumstances.
[116] Furthermore, a change of circumstances has been interpreted by the jurisprudence to mean any change that, had it been known at the time of the initial child support order, would have altered that order.
[117] At the time of the Separation Agreement, a determination of table child support was made. The quantum of child support was premised on shared parenting, with the Mother’s residence being the primary residence.
[118] On July 1, 2021, the children moved in with Father, and his residence became the de facto primary residence. I find as a fact that having considered all of the evidence, including that of the maternal grandmother and the Mother, from this date forward, the children lived more than 60 percent of the time with the Father. The Mother and maternal grandmother provided insufficient details concerning any pattern during which Jacob and Hannah slept over at the maternal grandparents’ house (where their Mother is currently residing). I accept the Father’s evidence that the children have been living more or less on a full-time basis with him since this date, with the two youngest spending some time with the Mother, such as during dinners. His evidence is supported by Isabel’s affidavit. This constitutes a material change of circumstances within the meaning of s. 17(4) of the Divorce Act and s. 14 of the Guidelines.
Quantum of Child Support and s. 7 Expenses from July 1, 2021
[119] I will now turn to how much child support and s. 7 expenses are owing on a current basis given the material change of circumstances effective July 1, 2021.
[120] First and foremost, child support is the right of the child, and not the parent seeking it: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 104.
[121] I have made an order for shared parenting time with respect to Hannah, on a week about basis, and therefore, s. 9 of the Guidelines applies. This section provides that the child support order will take into account:
(a) The amounts set out in the applicable tables for each of the (former) spouses; (b) The increased costs of shared parenting time arrangements; (c) The conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
[122] The Father’s personal line 15000 (formerly 150) income as reflected on his notices of assessment are:
(a) 2018: $14,391 (b) 2019: $13,457 (c) 2020: $32,885 (d) 2021: $32,822 (e) 2022: $55,211
[123] In addition, the Father produced his corporate tax return, corporate notices of assessments and/or year-end financial statements for his business, Isaac Ely Bespoke Inc. for 2018, 2019, 2020, 2021, and 2022. The Father did not explain these documents nor the financial circumstances of his business. I could not ascertain the revenues or profits generated in 2018. The Financial Statements provided were prepared by an accountant, but he did not perform an audit or review engagement and hence expresses no assurance on the reliability of the information provided by the company which forms the basis of these statements.
[124] Based on the evidence that the business is a one-man operation with no employees or agents other than the Father, it appears that any profits earned by the business were paid to the Father. It also appears that some of the Father’s expenses are claimed as business expenses, such as at least some of the rental of the home, which is also used for his showroom and business. Likely, the Father also claims a portion of the utilities, internet and other household expenses through his business. This is based on the fact that, according to the corporate tax returns, the company has negative retained earnings, and its liabilities are greater than its assets. The negative retained earnings grew year over year. However, I did not have a sufficient evidentiary basis to calculate the proportion of household expenses that were claimed as business expenses.
[125] Section 15.1(5) of the Divorce Act provides that I may consider any special provisions contained in a separation agreement that would justify an amount of child support that differs from the Guidelines.
[126] I have examined the Separation Agreement and can identify no special provision that offsets a benefit for the children, and no such provision was identified during trial.
[127] Accordingly, I undertook calculations based on the 2022 line 15000 income of the Father and the imputed 2022 income to the Mother. I have assumed that the eldest two children will share their summer holiday time with the two parents equally.
[128] The DivorceMate calculations reveal that Isaac owes off set child support to Mina effective February 1, 2024 in the monthly amount of $113 so long as the children are eligible for child support.
Section 7 Expenses
[129] In addition to child support, s. 7(1) of the Guidelines provides that the court may, on either spouse’s request, provide for an amount to cover all or any portion of the expense set out in (a) to (f) thereunder. Guiding the court’s discretion is the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to their financial means and the family’s spending pattern prior to separation.
[130] Section 7(2) of the Guidelines states that the presumption is that the parents will share these child-related expenses in proportion to their respective incomes after deducting any contribution from the child. Furthermore, the court must also consider any subsidies, benefits or income tax deduction or credits relating to the claimed expense, together with any eligibility to claim a subsidy, benefit or income tax deduction or credit.
[131] The Court of Appeal in Titova v. Titov, 2012 ONCA 864, 299 O.A.C. 215, at paras. 23-25, outlined the steps for determining whether to make an award under s. 7. Essentially, the court must calculate each party’s income for child support purposes, determine whether the claimed expenses fall within one of the enumerated categories of s. 7 expenses, determine whether the claimed expenses are necessary “in relation to the child’s best interests” and reasonable “in relation to the means of the spouses and also those of the child and to the family’s spending pattern prior to separation”.
[132] If the claimed expenses fall within one of the enumerated categories under s. 7(1) (d) or (f), then I must determine whether the expenses are “extraordinary”.
[133] Finally, I must determine what amount, if any, the child should reasonably contribute to the payment of these expenses and then apply any tax deductions or credits.
[134] The past and, in some cases ongoing, s. 7 expenses identified by the parties are:
(a) Bialik Hebrew School (elementary private Jewish high school) – all three children attended; (b) TanenbaumCHAT – the eldest two children attended, and Hannah is currently enrolled; (c) Blythe school expenses (Isabel); (d) Certain school trips and camps; (e) Dental expenses, including braces; (f) Eye doctor invoice ($47); (g) Electronics: IPads, computers, and keyboards; (h) Isabel’s rent incurred while going to Queen’s University in Kingston; (i) Jacob’s residence costs while going to Queen’s University in Kingston.
[135] The Father submits that as the children came to live with him on July 1, 2021 and that his home became their primary residence, the Mother should now pay him table child support, based on an imputed income of $60,000, and a share of the s. 7 expenses fixed at $1,000 per month.
[136] I find that the day-to-day dental expenses, life insurance premiums paid by Isaac on behalf of Mina under the Separation Agreement, cost of passport applications, and the children’s bedroom furniture are neither special nor extraordinary expenses.
[137] Based on the family’s pre-separation spending pattern, all the school- and university-related expenses are reasonable and in the best interests of the children. The parents paid for private schooling for all of the children and were able to afford this due to the Mother’s successful efforts at obtaining subsidies for the Jewish private schools. The parents saved for university education through the CST and subsequently the Father’s establishment of an RESP (without consulting the Mother). I have considered the means of the parents, which are modest. However, I find that these expenses are legitimate expenses and will be treated as s. 7 expenses.
[138] The children are entitled to the benefit of s. 7 expenses, even as the eldest entered full-time undergraduate university studies. The children have entered their first undergraduate degrees, and it was anticipated and encouraged that the children would go to university.
[139] The Father and Mother shall share the s. 7 expenses, consisting of Hannah’s high school, Jacob and Isabel’s university tuition, books and residential costs, any ongoing orthodontic expenses, and Hannah’s high school STEM and other trips and summer camps, on a 2:1 basis, which is in proportion to their current incomes. This proportion will change based on the parents’ prospective incomes as reported on their respective notices of assessments, issued with the exception that the Mother’s income shall not be less than that imputed for 2022. In other words, the Mother’s income can only be increased based on her notice of assessment, not decreased.
Issue Six: Retroactive child support and s. 7 expenses
[140] It is trite law that the purpose of child support is to assist the parent who is caring for the children in meeting their day-to-day expenses. A parent seeking retroactive child support must “provide evidence that the child suffered from a lack of financial support during the period in question. Ability to pay, as well as need, must be considered by the trial judge in the exercise of his or her discretion”: Drygala v. Pauli, at para. 53.
[141] As further stated by the Court of Appeal in Drygala v. Pauli, at para 54: “A trial judge has the discretion to award retroactive child support that is fit and just in the circumstances. As part of the exercise of discretion, the trial judge must consider the fairness of such an award including whether it will create an unreasonable debt obligation on the part of the payor.”
[142] In J.J. v. C.C., 2017 ONCA 357, 98 R.F.L. (7th) 56, at para. 12, quoting D.B.S. v. S.R.G., at para. 13, the court cited the following in regard to determining whether to award retroactive child support awards:
In determining whether to make a retroactive award, a court will need to look at all the relevant circumstances of the case in front of it. The payor parent’s interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a court should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.
[143] In making this decision, I have considered the financial hardship that this award will place on the Mother as a result of the Canada Child Benefit debt she must pay back. However, I have rejected this ground, as will be discussed in the next issue.
[144] The Mother therefore owes child support retroactively to July 1, 2021 in the table amount prescribed by the Guidelines. Based on her incomes, as I have found them, she owes the following amounts (need to adjust the below amounts – just a straight calculation:
(a) July 1, 2021 to December 31, 2021: $340 per month [^5] = $2,040. (b) January 1, 2022 to December 31, 2022: $340 per month [^6] = 4,080. (c) January 1, 2023 to August 31, 2023: $538 per month = $4,304. [^7] (d) September 1, 2023 to January 31, 2024: $396 per month = $1,980.
[145] I have considered the periods of time the two eldest children have been in full-time university. Therefore, they were at home only two months of the year (in the summer) and have summer jobs, and before that, would attend summer camp one month each summer. Accordingly, I calculated the child support as follows: July 1, 2021 to December 2021 was based on two children living full time with Isaac, and Isabel living one month with him; 2022 was based on two children living with Isaac, and in 2023 and one month into 2024, two children living with Isaac for half the year and one child living with him for the second half of the year. Given that the summer camps are s. 7 expenses, I have not made adjustments for the summers. As of February 1, 2024, only Hannah will be living full time with the parents but under a shared, 50/50 basis, parenting arrangement.
[146] The parties submitted invoices for s. 7 expenses that pre-date July 1, 2021. Under the Separation Agreement, Isaac was to pay $500 per month and Mina the rest. On the evidentiary record, I am unable to determine whether Isaac paid his monthly contribution. In any event, Mina has not proved the quantum of arrears.
[147] Accordingly, I will only calculate the s. 7 expenses and contributions effective July 1, 2021, as it was the date of the material change of circumstances.
[148] I did not have the invoices for Isabel’s and Jacob’s summer camp expenses, so I have excluded those.
[149] Furthermore, while Isaac paid for Hannah’s braces, Mina paid for Jacob’s braces. Therefore, this is more or less a wash.
[150] The total amount of recoverable s. 7 expenses paid by Mina since July 1, 2021 is $30,428.87, while Isaac paid $54,318.85, for a total of $84,747.72. Divided proportionately on an approximately 2:1 basis, proportionate to their respective incomes, Isaac owes Mina a total of $2,179.63. This amount shall be set off against the child support arrears owed by Mina.
[151] In making this apportionment, I am not providing a credit to Isaac for the RESP contributions or any of his individual contributions to the CST, as he did not consult with Mina regarding these contributions. Furthermore, the exact amount of his contributions, as distinct from government grants and growth inside these investments, were not provided to me.
[152] Regarding future post-secondary expenses for the children, I note that the balance of the CST as of January 1, 2021 was $54,144.38, and the balance of the RESP for Jacob and Hannah as of August 2023 was approximately $90,000. Regarding the means of the parents, the expectation that the children will apply for Ontario Student Assistance Program (“OSAP”) loans and work during the summers, and acknowledging that Isabel has already benefitted from some CST withdrawals, the children’s post-secondary expenses will be funded first by the CST and RESP on an equal basis. After deduction of OSAP loans, grants, bursaries and/or scholarships the children may receive, and a deduction of 50 percent of their summer earnings, which will be their deemed contribution to their post-secondary education expenses, any shortfall will be funded by the Mother and Father in proportion to their respective incomes.
[153] Isaac and Mina shall exchange their income tax returns, notices of assessment, and in Isaac’s case, his corporate income tax returns, notices of assessment, and yearend financial statements by July 1 of each year so that they can determine their ongoing proportionate contributions to s. 7 expenses and updated table child support obligations under the Guidelines. Their Separation Agreement provides for a dispute resolution mechanism (check), and there is no reason why they should not follow that course in the event of a future dispute.
[154] A Support Deduction Order will issue with respect to Mina’s child support arrears (calculated by deducting the s. 7 expense arrears of Isaac), and a Support Deduction Order will issue with respect to Isaac’s current child support obligations, which commence on February 1, 2024.
Issue 8: The Canada Child Benefit
[155] The Separation Agreement provides that the Mother is entitled to claim the Canada Child Benefit. However, that was premised on the fact the children’s primary residence was with her, within the shared parenting agreement.
[156] The Mother complains that the Father should have put her on notice when he intended to claim the Canada Child Benefit (sometimes referred to by the parties as the Child Tax Benefit). He did not, and hence, both parents applied at the same time for the same benefit.
[157] The Mother has now been required by the CRA to repay the Canada Child Benefit she claimed after the children went to live with the Father.
[158] The core issue here is whether the Mother is entitled to either a set off from her child support arrears based on the Father’s conduct of having claimed the Canada Child Benefit without notice to her, or whether this constitutes a financial hardship such as to reduce her past or future child support obligations.
[159] Contrary to the Mother’s submissions, she should have known that she was no longer entitled to claim the Canada Child Benefit once the children moved in with the Father as their primary residence. Notwithstanding the provisions of the Separation Agreement, only the parent who provides the primary residence to the children is entitled, at law, to the Canada Child Benefit. The Separation Agreement is not binding on the CRA. I note that she was represented by a lawyer in the initial stages of this litigation.
[160] The court heard the Mother’s defence that she felt she was entitled to the Canada Child Benefit based on the wording of the Separation Agreement, and further that she felt she was entitled to notice from the Father. However, this misses the point. The point is that the Mother was no longer entitled to apply for this benefit under the eligibility requirements set out by the federal government once the children moved in with the Father. Ignorance of the law is not a defence, and the Mother could have made inquiries of the CRA if she was uncertain as to her standing to apply for the benefit.
[161] The Father has no liability arising from the CRA’s demand for repayment of the Canada Child Benefit from the Mother. This is a matter between the Mother and the CRA.
[162] On a go forward basis, however, given my ruling that the parents will share parenting of Hannah on a 50/50 basis, they should split the Canada Child Benefit each year. Isaac and Mina should apply for the Canada Child Benefit on alternating years. Given my finding of shared parenting commencing February 1, 2024, the Father will apply for the Canada Child Benefit for 2024, the Mother will apply for the Canada Child Benefit for 2025, and so on for as long as Hannah is eligible. If the parties mutually agree, they may instead apply for the Canada Child Benefit on alternating months commencing February 1, 2024. Otherwise, it shall be on an alternating annual basis as stated.
The Orders and Declarations
[163] The following orders and declarations will therefore issue:
(a) Both Mina and Isaac will have joint decision-making authority over Hannah; (b) Isaac and Mina will have a shared parenting arrangement with Hannah on a week about basis; (c) The holiday schedule set out in the Separation Agreement is applicable for Hannah; (d) Isabel and Jacob will make their own decisions, and their wishes respecting with whom they wish to live will be respected; (e) There are no child arrears or s. 7 expenses owing prior to July 1, 2021; (f) Mina’s income is imputed at $20,600 for 2022 and $31,546 for 2023; (g) A material change of circumstances occurred on July 1, 2021 warranting a change in child support and s. 7 expenses under the Separation Agreement; (h) Isaac owes arrears of s. 7 expenses in the sum of $2,179.63; (i) Mina owes arrears of child support in the sum of $12,404; [^8] (j) As of February 1, 2024, Isaac owes Mina off-set child support in the monthly sum of $113.00; (k) As of February 1, 2024, Isaac shall pay two thirds of the s. 7 expenses for the three children as outlined in these Reasons, and Mina will pay one third of those expenses; (l) Support Deduction Orders will issue; (m) The parties shall exchange income tax returns and notices of assessments each year by July 1 for so long as the children, or any of them, or eligible for child support. However, if Mina’s income as reported on her notices of assessment falls below $31,546, her income will continue to be imputed at that amount. Conversely, if Mina’s income is higher than $31,546 that amount will be used for purposes of calculating future Table Support.
COSTS
[164] The parties are self-represented. Nonetheless they are entitled to request costs based on a lost opportunity basis. Both parties had lawyers at various times during this litigation and those paid accounts may also be considered by the court as part of a cost award. The parties are urged to research the limited basis upon which they can seek costs as self-represented litigants. If costs cannot be settled as between the parties, the Applicant shall deliver his costs outline and brief written arguments as to why he should receive costs in the amount requested, and the relevant scale of costs (full indemnity, substantial indemnity, or partial indemnity) within 10 days from release of these Reasons. The Respondent shall then deliver her costs outline and brief written arguments setting out her positions within 10 days thereafter. The written arguments shall not exceed double spaced pages from each party and are to be delivered to my judicial assistant by email as well as uploaded through the JSO portal.
Justice S. Vella Released: January 29, 2024
CORRECTION NOTICE
Corrected Decision: The text of the original judgment was corrected on June 12, 2024 and the description of the correction is appended.
June 12, 2024:
In paragraph 144(c) the date was changed to August 31, 2023 and the amounts were replaced by $538 and by $4,304.
Paragraph 144(d) was added and the amount inserted is $1,980.
The amount in paragraph 163(i) was replaced by $12,404.
The inadvertent mistakes in the original judgment resulted from a miscalculation of the child support with summer formula calculations from DivorceMate.
COURT FILE NO.: FS-21-00026317-0000 DATE: 20240129 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SHAHROKH ELYASIAN Applicant – and – MINA ELYASIAN Respondent
AMENDED REASONS FOR JUDGMENT Vella J. Released: January 29, 2024
Footnotes
[^1]: J.J. v C.C., 2017 ONCA 357, 98 R.F.L. (7th) 56; Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.). [^2]: Notwithstanding my direction to each of the parties at the outset of the trial and again in advance of each taking the witness stand, each party only provided a brief synopsis of their facts that was largely reflective of their opening statements. Neither party sought to introduce any of the key documents as exhibits during their respective examinations-in-chief, and hence, I undertook the process of asking each party to identify their documents, explain them, and why they wanted me to consider them. In addition, I asked open ended “trigger questions” to place each issue before them and ask for their respective positions, rationale, and support for their positions, as well as what finding and relief they wished me to make. These processes took about two to two and a half hours each. Both parties consented to this process. [^3]: The Father uploaded a Child Support Brief to Caselines, which apparently has bank account statements from September 2019 to May 2021 showing uncharacterized withdrawals made by him on varying dates and in varying amounts (inconsistent with the obligation to pay the sum of $1,292 on the first of the month). However, these were not tendered at trial and, in any event, do not span the entire period from 2015 to present. The index to this brief was filed as Exhibit D. [^4]: The Mother worked for Darren Mason in 2018 and earned $85,292.32. She then worked for Milli in 2019 but erroneously reported that income of $23,076.90 in 2018 for a total income of $111,633. Accordingly, the earnings from Milli’s was transferred from 2018 to 2019 as per the 2019 Notice of Assessment. [^5]: Based on two children living full time and one child during the summer with Isaac and incomes of $20,600 and $32,822 attributed to Mina and Isaac respectively. [^6]: Based on two children living full time and one child during the summer with Isaac and incomes of $20,600 and $55,211 attributed to Mina and Isaac respectively. [^7]: Based on two children living full time with Isaac until August 31 2023, and then one child living full time and two children living during the summer with him until January 31 2024, using the summer formula for Isabel for the period from January 1, 2023 to August 31, 2023 for (c)and then the summer formula for the two eldest children for the period from September 1, 2023 to January 31, 2024 for (d) with incomes of $31,546 and $55,211 attributed to Mina and Isaac respectively. These amounts based on DivorceMate and the Guidelines provided by the Father subsequent to the release of my Reasons as invited in the original footnote 7. The Mother objects but I accept these calculations as reflecting my findings of fact. , as no assistance was provided by the parties for the scenarios based on the facts as I have found them. I had intended to use the “summer” calculations to reflect the situation of the two eldest children from the respective periods of full-time attendance at university, and shared parenting with respect to the youngest, and the two eldest living with Father during the summers as of February 1, 2024. However, if either party disagrees with the calculation (not the underlying reasons for having ordered the child support retroactively), they may provide me with their DivorceMate calculations within ten days from the Release of these Reasons. [^8]: This figure is revised from $11,268 as a result of the revised calculations for arrears reflected in paragraph 144(c) and (d).