Court File and Parties

COURT FILE NO.: FC973/01-01 DATE: December 18, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Susan Barbara Moore Not appearing Applicant

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Christopher Eric Waltham Respondent

Danica Francis, for the Respondent Christopher Eric Waltham

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Ministry of Children, Community and Social Services Assignee

Zora Drozd as agent, for the Respondent Ministry of Children, Community and Social Services

HEARD: December 16, 2024

TOBIN J.

REASONS FOR JUDGMENT

The Proceeding

1The Respondent brings this Motion to Change the final Order of Justice Campbell dated August 16, 2005. This Order, in part, directs the Respondent to pay child support to the Applicant for their child, born August […] 2000.

2The respondent requests that his child support obligation under the Order terminate retroactive to the date the child turned 18 and that there be no arrears of child support owing by him.

Facts

3The parties are the parents of one child, [A.M.], born August […] 2000.

4The Applicant brought a proceeding in this court to address parenting and support issues. On August 16, 2005, a final Order in that case was granted by Justice Campbell. This Order provided that the Applicant have custody of the child. The Respondent was ordered to pay child support to the Applicant for the child in the monthly amount of $413 starting June 1, 2005, based on the Respondent’s annual income of $48,000.

5On the day the Order of Justice Campbell was granted, the Respondent happened to be incarcerated. He was not present in court. Records from the Elgin Middlesex Detention Centre disclose that the Respondent was released the next day, August 17, 2005.

6The Respondent fell into arrears under Justice Campbell’s Order immediately.

7The Respondent brought a Motion to Change Justice Campbell’s Order. That case ended with the final Order of Justice Marshman dated May 20, 2008. This Order provided that arrears under the Justice Campbell Order were reduced to $6,000 as of May 1, 2008. The amount of $4,000 of that amount was due to the Applicant, and $2,000 was due to the Ministry of Community and Social Services.

8The Applicant assigned the support ordered by Justice Campbell to the Ministry (now the Ministry of Children, Community and Social Services) from September 1, 2005 until December 31, 2016.

9At the opening of this trial, counsel for the Ministry and the Respondent advised that they had resolved issues as between them. They agreed that the Respondent would pay to the Ministry $6,000 on account of arrears for the period of the assignment. Counsel also advised that this amount has already been paid.

10Subsequent to Justice Campbell’s Order being given, the Respondent experienced health-related issues. In 2016, he had a stroke that impaired his vision. He had hypertension, chronic neck, right shoulder, elbows, and knee pain.

11These symptoms became worse over time.

12His medical condition affected his ability to work as a carpenter. Difficulties developed in handling power tools, seeing sufficiently well to do his work, and meeting the physical demands of his trade.

13Also, in 2019, the Respondent started to display decreased hearing in his right ear.

14From 2011 until 2016, the Respondent’s sole source of income was from Ontario Works.

15On June 9, 2016, the Respondent was found to be a “Person with a Disability” and entitled to receive ODSP.

16In June 2018, the child graduated from high school. He turned 18 on August 22, 2018. There is no evidence that the child has attended for post-secondary education. As well, there is no evidence the child had or has any health or other issues that prevent him from withdrawing from the charge of his parents.

17On February 8, 2021, the Applicant signed a “Child Status Request Form” from the Family Responsibility Office. In this form, the Applicant advised, in part, that:

• The child did not have a medical condition or disability that prevented him from working, going to school, or leaving her care;
• The child was not in school; and
• The child had not lived with her since September 1, 2018.

18Sandra Waltham, the Respondent’s daughter, put in evidence an Instagram post she saw on the internet made by the child in May 2023. This Instagram post is a picture of the child somewhere in Japan.

19The Respondent also put in evidence the July 29, 2022, Director FRO’s Schedule A calculation of child support arrears owing under the Justice Campbell Order. The Director’s calculation of arrears as of that date was $51,416.33.

Issues

20The following issues are to be addressed:

1. Has the Respondent established that he is entitled to an order decreasing his child support obligation under Justice Campbell’s order of August 16, 2005?
2. Has the Respondent’s statutory obligation to pay child support to the Applicant for the child ended, and if so, when?
3. What is the Respondent’s income for the determination of his child support obligation?

Issue #1—Has the Respondent established that he is entitled to an order decreasing his child support obligation under Justice Campbell’s order of August 16, 2005?

21The Respondent argues that health issues experienced by him constitute a material change in circumstances such that his child support obligation should be recalculated.

22Unfortunately, the Applicant did not attend the trial despite the granting of the accommodation she requested at the trial management conference. She was made aware of the hearing date by Trial Coordination. The Zoom link to the trial was kept on the entire time the trial was held in case she attended. She did not.

Legal considerations

23When income was imputed to the payor, that issue will be considered res judicata: see Bemrose v. Fetter, 2007 ONCA 637, at paras. 82 and 95.

24The principles to be applied when the court is asked to change support where income was imputed were considered in Trang v. Trang, 2013 ONSC 1980, in part, as follows:

52. A party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent “declared” income. They must address why income had to be imputed in the first first place. They must present evidence of changed circumstances which establish that either:

a. It is no longer necessary or appropriate to impute income. The payor’s representations as to income should now be accepted, even if they weren’t accepted before.

Or,

b. Even if income should still be imputed, changed circumstances suggest a different amount is more appropriate.

55. Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on a motion to change. That determination has already been made. The onus is on the support payor to establish that there should be a change in the way their income is to be calculated.

56. But if a payor proceeds by way of motion to change, they must face the presumption that the original order was correct – and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court[.]

25Where income is imputed, a support payor must be able to demonstrate that there was a material change in circumstances since the making of the original order: Ruffolo v. David, 2016 ONSC 754 (Ont. Div. Ct.).

26The onus is on the payor to demonstrate that the material decrease in income had a degree of continuity, that it is real and not one of choice.

27The framework for these decrease applications was set out in Colucci v. Colucci, 2021 SCC 24, at para. 113:

(2) Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary. In the decrease context, effective notice requires clear communication of the change in circumstances accompanied by the disclosure of any available documentation necessary to substantiate the change and allow the recipient parent to meaningfully assess the situation.

(3) Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice.

(4) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The S. (D.B.) v. G. (S.R.), 2006 SCC 37 factors adapted to the decrease context guide this discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased, viewed in the context of hardship to the child and recipient if support is decreased. The payor’s efforts to pay what they can and to communicate and disclose income information on an ongoing basis will often be a key consideration under the factor of payor conduct.

(5) … [O]nce the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

Discussion

28The Respondent was not able to state in his evidence that when the Order of Justice Campbell was made, he had provided financial disclosure. He was aware that the Applicant produced in evidence before Justice Campbell the Respondent’s T4 slip for a period of approximately ten years before the order was made. The parties were not cohabiting when he earned that income. The Respondent’s evidence was that that was one of the highest amounts of income he ever earned.

29The issue of the Respondent’s health arose after Justice Campbell’s Order was granted.

30I am satisfied that the Respondent has provided cogent medical evidence of his inability to generate income from employment after June 9, 2016. This was when he was granted ODSP. He was found by the Ontario Disability Support Program to be a person with a disability under the Ontario Disability Support Program Act, 1997, SO 1997, c 25, Sch B. Section 4 of that Act provides as follows:

4 (1) A person is a person with a disability for the purposes of this Part if,

(a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more;

(b) the direct and cumulative effect of the impairment on the person’s ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living; and

(c) the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified by a person with the prescribed qualifications.

31Given the state of his medical concerns, ODSP did not recommend a review of his circumstances.

32I find that on this evidence, the Respondent has established a material change in circumstances subsequent to the granting of Justice Campbell’s Order that affected his income and ability to earn income.

33The Respondent did not provide effective notice to the Applicant of his financial and medical circumstances and his need to have child support reviewed until his Motion to Change was issued on October 7, 2022 and then served.

34Respondent’s counsel suggested that effective notice was given when the first Motion to Change was brought. With respect, that matter was dealt with, and it is not reasonable to expect that case would be considered as ongoing notice. The basis for the current Motion to Change had not existed at the time the first Motion to Change was brought.

35However, in the circumstances of this case, I find that it would be unfair not to allow the variation to take effect beginning January 1, 2017.

36The Respondent explained that he did not bring this motion to change because he was afraid of the Applicant. When their relationship ended, she had him arrested. He had avoided contact with her for years. He did not have contact with the child. When he went to court for the first Motion to Change, he was told he could end up in jail. He chose not to contact the Applicant. He did not want any trouble. I find that he decided to bring this case when his one half of his CPP benefits were being diverted to the Director FRO for the benefit of the Applicant.

37I accept that in the odd circumstances of this case the Applicant had an understandable reason for the delay in seeking a decrease. I do not see this delay or any other behaviour of the respondent as constituting blameworthy conduct. Given the reason he was in receipt of social assistance, his actions should not be characterized as privileging his own interests over his child's right to an appropriate amount of support.

38Because the Applicant did not participate, there is no evidence of the child’s circumstances. What is known is that the Applicant was in receipt of social assistance and had assigned the support payments to the Ministry.

39If the support is not reduced, the hardship to the Respondent is that he would be paying child support in an amount much greater than is called for under the Child Support Guidelines for someone with his level of income.

40Since the Respondent started this case, he has provided financial disclosure as well as evidence of his medical condition.

41It is for these reasons that I find that the retroactive decrease in child support should start January 1, 2017. The Respondent should pay child support based on the income he received subsequent to that date. January 2017 is the first month after the Ministry was no longer the assignee. The Ministry and the Respondent have resolved the issue of support arrears as between them for the lengthy period before January 1, 2017 by reducing considerably the amount of arrears owing.

Issue #2—Has the Respondent’s obligation to pay support ended, and if so, when?

42Section 31 of the Family Law Act, R.S.O. 1990, c. F.3, prescribes when a parent is obligated to provide support as follows:

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

43In this case, the Respondent established on the balance of probabilities that his obligation to provide support for the child ended on August 31, 2018 based on the following:

• The child attained the age of majority on August […] 2018.
• The child completed high school in June 2018.
• There is no evidence that he enrolled in a full-time program of education.
• There is no evidence the child is unable by reason of illness, disability, or other cause to withdraw from the charge of his parents.
• The child stopped living with the Applicant in September 2018.

Issue #3—What is the Respondent’s income for the determination of his child support obligation?

Legal considerations and Discussion

44The determination of the Respondent’s income will be limited to 2017 and 2018. This is to be the case because the Ministry resolved the issue with the Respondent to December 31, 2016, and the Respondent’s obligation to provide child support ended August 31, 2018.

45The Child Support Guidelines s. 3(1)(a) provide that the amount of an order for child support for a child under the age of majority is the amount set out in the applicable table.

46In this case, there is no suggestion in the evidence that income should be imputed to the Respondent for the two years in question. His inability to work has been established.

47The following is a chart of income received, the support obligation, and the amount of arrears outstanding.

Year	Income for Year	Guideline Amount per Month	Number of Mos.	Support Owing	Support Paid
2017	$13,268	$70.93	11	$780.23	$780.23
2017	$13,268	$53.18	1	$53.18	$53.18
2018	$13,884	$58.15	8	$465.20	$465.20

Total Arrears: $1,298.61

48The Director has continued to enforce the Order of Justice Campbell. It has held funds collected since 2019 and not released them to the Applicant. Counsel for the Respondent advised that the Director holds these funds pending the determination of the Respondent’s Motion to Change.

49I find that all the funds held by the Director on account of support claimed after August 31, 2018, except for $1,298.61, are to be paid to the Respondent. The amount of $1,298.61 is to be paid forthwith to the Applicant.

Order

50For these reasons:

1. An Order shall issue as between the Ministry and the Respondent in terms of the draft order attached as Appendix A.
2. The Order of Justice Campbell dated August 16, 2005 is varied to provide that the Respondent’s child support obligation to the Applicant for the year 2017 was $833.41.
3. The Order of Justice Campbell dated August 16, 2005 is varied to provide that the Respondent’s child support obligation to the Applicant for the year 2018 was $465.20.
4. The Respondent’s obligation to pay child support to the Applicant under the Order of Justice Campbell dated August 16, 2005 terminated August 31, 2018.
5. The amount of $1,298.61 is to be paid forthwith to the Applicant out of the funds the Director holds to the credit of this case. All of the remaining funds held by the Director to the credit of this case are to be forthwith paid to the Respondent.
6. The child support arrears owing by the Respondent to the Applicant as of August 31, 2018 are fixed at zero dollars.
7. Paragraphs 3 and 4 of the Order of Justice Campbell dated August 16, 2005 are vacated effective August 31, 2018.