Superior Court of Justice – Ontario

Court File No.: FS-24-42128
Date Heard: March 4, 2025
Date of Judgment: March 7, 2025

Before: Deborah A. Kraft

Between:
Sheryl Kathleen Humphreys, Applicant
and
William Humphreys, Respondent

Appearances:
No one appearing for the Applicant
Respondent, in person

Decision on Motion to Change

Introduction

1This is a Motion to Change by the respondent (“father”) commenced on April 17, 2024 to change the final order of McGee, J., dated July 26, 2010 (“2010 McGee Order”) as it relates to child support. The father seeks to retroactively decrease his child support obligation and/or to rescind all of his arrears.

2The 2010 McGee Order varied a prior child support order of Speyer, J., dated August 3, 2005. Under the 2010 McGee Order the father is to pay child support to the applicant (“mother”) in the sum of $300 a month starting July 1, 2020, which is based on him earning a gross annual income of $65,000. In addition, the father’s child support arrears were fixed at $2,000 and he was to pay $200 a month to the mother toward the arrears starting July 1, 2010 until the arrears were paid.

3The evidence on record is that the father owes child support arrears of $41,436.15 as of June 4, 2024.

4The father has been self-represented in his Motion to Change. Despite serving the mother with his materials, and the mother having been served with court orders made in this matter, she has chosen not to participate in this proceeding. The Motion to Change, therefore, was heard in the absence of the mother. The father appeared in person and gave viva voce testimony.

Brief Background

5The parties were married on August 18, 2000. They separated in 2005 and were divorced on December 28, 2005.

6This was the father’s second marriage. The father has two children from his first marriage, both of whom are adults living independently.

7The parties have one child together, L., born on September 18, 2002. She is currently 22 years of age. L. has either graduated from university or is in her last semester of school. L. plans to attend or is attending Teacher’s College.

8The mother resides in Burlington, ON with her new spouse and L. The father resides in Toronto.

9At the time of separation, the father had been working as a manager of leasing at Morguard Investments. He testified that he had been earning about $100,000 a year in that role.

10The order of Speyer, J., dated August 3, 2005, incorporated Minutes of Settlement signed by the parties (“the 2005 Order”). The 2005 Order obliged the father to pay child support to the mother of $903 a month starting July 15, 2005, which amount included the father’s proportionate share of child care expenses and was based on the father earning $93,000 a year and the mother earning $50,000 annually. In addition, the father’s child support arrears were fixed at $2,709 for April-June 2005 and he agreed to pay the arrears off by making a payment of $700, and then at the rate of $200 a month starting July 15, 2005 until the arrears were paid.

11In 2008, the father lost his job at Morguard on account of corporate restructuring. The day after the father lost his employment, he deposed that he had to bury his father. Having lost his mother about a year and a half earlier, the father describes being devastated and not doing well from a mental health perspective.

12The Family Responsibility Office (“FRO”) was enforcing the father’s child support obligation owing to the mother, and his child support obligation to his first wife. When he found himself unemployed, the father did not address the letters and warnings he received from the FRO.

[13] Ultimately, the father’s driver’s licence and Canadian passport were```mdx

citation: "Humphreys v. Humphreys, 2025 ONSC 1515" parties: "Sheryl Kathleen Humphreys v. William Humphreys" party_moving: "William Humphreys" party_responding: "Sheryl Kathleen Humphreys" court: "Superior Court of Justice" court_abbreviation: "ONSC" jurisdiction: "Ontario" case_type: "motion" date_judgement: "2025-03-07" date_heard: "2025-03-04" applicant:

• "Sheryl Kathleen Humphreys" applicant_counsel:
• "Self-represented" respondent:
• "William Humphreys" respondent_counsel:
• "Self-represented" judge: "Deborah A. Kraft" year: 2025 decision_number: 1515 file_number: "FS-24-42128" source: "https://www.canlii.org/en/on/onsc/doc/2025/2025onsc1515/2025onsc1515.html" cited_cases: legislation:
  • title: "Divorce Act, RSC 1985, c 3 (2nd Supp)" url: "https://laws-lois.justice.gc.ca/eng/acts/D-3.4/"
  • title: "Family Orders and Agreements Enforcement Assistance Act, RSC 1985, c 4 (2nd Supp)" url: "https://laws-lois.justice.gc.ca/eng/acts/F-1.4/"
  • title: "Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c 31" url: "https://www.ontario.ca/laws/statute/96f31"
  • title: "Bankruptcy and Insolvency Act, RSC 1985, c B-3" url: "https://laws-lois.justice.gc.ca/eng/acts/B-3/"
  • title: "The Family Maintenance Act, CCSM c F20" url: "https://web2.gov.mb.ca/laws/statutes/ccsm/f020e.php" case_law:
  • title: "Colucci v. Colucci, 2021 SCC 24" url: "https://www.minicounsel.ca/scc/2021/24"
  • title: "Templeton v. Nuttall, 2018 ONSC 815, para 39" url: "https://www.minicounsel.ca/scj/2018/815#par39"
  • title: "H.G.S. v. J.R.M., 2018 ABQB 892, para 113" url: "https://www.canlii.org/en/ab/abqb/doc/2018/2018abqb892/2018abqb892.html#par113"
  • title: "Rosemary Leonor Corcios v. Edgar Zenon Alfaro Burgos, 2011 ONSC 3326, para 55" url: "https://www.canlii.org/en/on/onsc/doc/2011/2011onsc3326/2011onsc3326.html#par55"
  • title: "Kinsella v. Mills, 2020 ONSC 4785, para 166" url: "https://www.minicounsel.ca/scj/2020/4785#par166"
  • title: "Bolsover v. Nissen, 2022 ONCH 35, para 48" url: "https://www.canlii.org/en/on/onsc/doc/2022/2022onsc35/2022onsc35.html#par48"
  • title: "Gray v. Rizzi, 2016 ONCA 152, para 62" url: "https://www.minicounsel.ca/oca/2016/152#par62"
  • title: "Templeton v. Nuttall, 2018 ONSC 815, para 51" url: "https://www.minicounsel.ca/scj/2018/815#par51"
  • title: "Hrynkow v. Gosse, 2017 ABQB 675, para 13" url: "https://www.canlii.org/en/ab/abqb/doc/2017/2017abqb675/2017abqb675.html#par13"
  • title: "Hodges v. Hodges, 2018 ABCA 197, para 10" url: "https://www.canlii.org/en/ab/abca/doc/2018/2018abca197/2018abca197.html#par10"
  • title: "D.B.S. v. S.R.G., 2006 SCC 37, para 98, para 106" url: "https://www.minicounsel.ca/scc/2006/37"
  • title: "Earle v. Earle, 1999), paras 32-33" url: "https://www.canlii.org/en/ab/abqb/doc/1993/1993canlii6988/1993canlii6988.html#par32"
  • title: "Haisman v. Haisman (C.A.), 1994 ABCA 249" url: "https://www.canlii.org/en/ab/abca/doc/1994/1994abca249/1994abca249.html"
  • title: "Brown v. Brown, 2010 NBCA 5, para 44" url: "https://www.canlii.org/en/nb/nbca/doc/2010/2010nbca5/2010nbca5.html#par44"
  • title: "Brown v. Barber, 2016 ABQB 687, paras 15-16" url: "https://www.canlii.org/en/ab/abqb/doc/2016/2016abqb687/2016abqb687.html#par15"
  • title: "Gray v. Rizzi, 2016 ONCA 152, para 58, para 53" url: "https://www.minicounsel.ca/oca/2016/152"
  • title: "C.L.W. v. S.V.W., 2017 ABCA 121, para 30" url: "https://www.canlii.org/en/ab/abca/doc/2017/2017abca121/2017abca121.html#par30"
  • title: "Blanchard v. Blanchard, 2019 ABCA 53, para 32" url: "https://www.canlii.org/en/ab/abca/doc/2019/2019abca53/2019abca53.html#par32"
  • title: "S.A.L. v. B.J.L., 2019 ABCA 350, para 12" url: "https://www.canlii.org/en/ab/abca/doc/2019/2019abca350/2019abca350.html#par12"
  • title: "Semancik v. Saunders, 2011 BCCA 264, para 25" url: "https://www.canlii.org/en/bc/bcca/doc/2011/2011bcca264/2011bcca264.html#par25"
  • title: "Mayotte v. Salthouse, 1997 ABCA 145, para 2" url: "https://www.canlii.org/en/ab/abca/doc/1997/1997abca145/1997abca145.html#par2"
  • title: "Heiden v. British Columbia (Director of Maintenance Enforcement), paras 10 and 13" url: "https://www.canlii.org/en/bc/bcca/doc/1995/1995canlii1415/1995canlii1415.html#par10"
  • title: "Walsh v. Walsh, para 25" url: "https://www.minicounsel.ca/oca/2004/36110#par25"
  • title: "Walsh v. Walsh" url: "https://www.minicounsel.ca/oca/2004/24259"
  • title: "Tremblay v. Daley, 2012 ONCA 780" url: "https://www.minicounsel.ca/oca/2012/780"
  • title: "St-Jules v. St-Jules, 2012 NSCA 97, para 50" url: "https://www.canlii.org/en/ns/nsca/doc/2012/2012nsca97/2012nsca97.html#par50" summary: > The court considered a motion by the respondent father to retroactively decrease his child support obligation and/or rescind all arrears under a 2010 order. The father, self-represented, argued that his long-term unemployment and health issues constituted a material change in circumstances. The mother, though served, did not participate. The court found a material change in circumstances from 2014 onward, but not for 2010–2014 due to lack of evidence. The court reduced the arrears to $1,500, to be paid at $50/month, and rescinded the remainder, finding the father unable to pay more. The court applied the Supreme Court’s Colucci framework and relevant statutory provisions. interesting_citations_summary: > The decision provides a clear application of the Supreme Court’s Colucci v. Colucci framework for retroactive child support variation and rescission of arrears, including the D.B.S. factors. It also highlights the high threshold for rescission of arrears, the importance of reliable evidence, and the court’s discretion to depart from the presumptive retroactivity date in exceptional circumstances. keywords:
• Child support
• Motion to change
• Retroactive decrease
• Rescission of arrears
• Material change in circumstances
• Colucci v. Colucci
• D.B.S. factors
• Family Responsibility Office
• Divorce Act
• Self-represented litigant areas_of_law:
• Family Law

Superior Court of Justice – Ontario

Court File No.: FS-24-42128
Date Heard: March 4, 2025
Date of Judgment: March 7, 2025

Before: Deborah A. Kraft

Between:
Sheryl Kathleen Humphreys, Applicant
and
William Humphreys, Respondent

Appearances:
No one appearing for the Applicant
Respondent, in person

Decision on Motion to Change

Introduction

1This is a Motion to Change by the respondent (“father”) commenced on April 17, 2024 to change the final order of McGee, J., dated July 26, 2010 (“2010 McGee Order”) as it relates to child support. The father seeks to retroactively decrease his child support obligation and/or to rescind all of his arrears.

2The 2010 McGee Order varied a prior child support order of Speyer, J., dated August 3, 2005. Under the 2010 McGee Order the father is to pay child support to the applicant (“mother”) in the sum of $300 a month starting July 1, 2020, which is based on him earning a gross annual income of $65,000. In addition, the father’s child support arrears were fixed at $2,000 and he was to pay $200 a month to the mother toward the arrears starting July 1, 2010 until the arrears were paid.

3The evidence on record is that the father owes child support arrears of $41,436.15 as of June 4, 2024.

4The father has been self-represented in his Motion to Change. Despite serving the mother with his materials, and the mother having been served with court orders made in this matter, she has chosen not to participate in this proceeding. The Motion to Change, therefore, was heard in the absence of the mother. The father appeared in person and gave viva voce testimony.

Brief Background

5The parties were married on August 18, 2000. They separated in 2005 and were divorced on December 28, 2005.

6This was the father’s second marriage. The father has two children from his first marriage, both of whom are adults living independently.

7The parties have one child together, L., born on September 18, 2002. She is currently 22 years of age. L. has either graduated from university or is in her last semester of school. L. plans to attend or is attending Teacher’s College.

8The mother resides in Burlington, ON with her new spouse and L. The father resides in Toronto.

9At the time of separation, the father had been working as a manager of leasing at Morguard Investments. He testified that he had been earning about $100,000 a year in that role.

10The order of Speyer, J., dated August 3, 2005, incorporated Minutes of Settlement signed by the parties (“the 2005 Order”). The 2005 Order obliged the father to pay child support to the mother of $903 a month starting July 15, 2005, which amount included the father’s proportionate share of child care expenses and was based on the father earning $93,000 a year and the mother earning $50,000 annually. In addition, the father’s child support arrears were fixed at $2,709 for April-June 2005 and he agreed to pay the arrears off by making a payment of $700, and then at the rate of $200 a month starting July 15, 2005 until the arrears were paid.

11In 2008, the father lost his job at Morguard on account of corporate restructuring. The day after the father lost his employment, he deposed that he had to bury his father. Having lost his mother about a year and a half earlier, the father describes being devastated and not doing well from a mental health perspective.

12The Family Responsibility Office (“FRO”) was enforcing the father’s child support obligation owing to the mother, and his child support obligation to his first wife. When he found himself unemployed, the father did not address the letters and warnings he received from the FRO.

13Ultimately, the father’s driver’s licence and Canadian passport were suspended. He lost his real estate licence as well. FRO seized all of the monies in the father’s bank account which he claims included the inheritance he received from his father’s estate and his severance payment from Morguard.

14In 2010, the father became employed as a Leasing Manager with Gottardo Developments. At that time, the father initiated a Motion to Change to reduce his child support obligation since the 2005 Order was based on the father earning an income of $93,000 a year.

15In 2010, McGee, J. made an order varying the 2005 Order such that the father’s child support obligation was reduced to $300 a month based on his gross annual income of approximately $65,000 and his child support arrears were fixed at $2,000 to be paid off by him monthly in the additional sum of $200 a month starting July 1, 2010 until the arrears were paid.

16Shortly after the 2010 McGee Order was entered into, the father lost his job again.

17The father testified that after he lost his job in 2010, he applied for and began to receive social assistance. The father’s mental and physical health began to deteriorate. He testified that he was immobilized and was not able to take steps to help himself. His only source of income has been Ontario Works since 2010.

18In and around that time (late 2010), the father testified that he also lost his sister and best friend. The father explains that he was living in a rented room, was destitute and using food banks to survive. He was struggling from a mental health perspective, had gained significant weight, was inactive and unable to “grab a hold of himself.” About three years ago, the father started to volunteer, feel better and take steps to address the significant arrears that had accumulated under the 2010 McGee Order and the arrears of child support that were owing to his first wife.

19In the spring of 2022, the father contacted FRO to obtain copies of the two support orders under which the FRO was collecting money from him.

20On June 1, 2022, the father was sent a Statement of Arrears from the FRO indicating that as of that date, he owed child support arrears of $41,400.52.

21On June 9, 2022, FRO sent him both a copy of the 2005 Speyer Order and the 2010 McGee Order.

22The father then took steps to file his last ten year’s worth of income tax returns.

23The father applied for a new Canadian passport and was advised by letter on August 18, 2022, by Immigration that he cannot obtain a new passport because he owed child support pursuant to the Family Orders and Agreements Enforcement Assistance Act (FOAEAA).

24On his request, the FRO conducted a Child Status Review of L. and wrote to the father on August 19, 2022, that L. was still entitled to receive child support because she was in post-secondary education full time.

25The father began to consult with lawyers from legal aid and took steps to draft his Motion to Change materials.

26On April 19, 2024, the father issued the within Motion to Change, seeking to rescind any child support arrears which had accumulated under the 2010 McGee Order and to terminate his child support obligation for L. as of September 18, 2022, when she turned 18 years of age.

27On July 11, 2024, the first appearance took place before a Dispute Resolution Officer (“DRO”), Erica Tait. The DRO Conference Report confirms that the mother did not appear nor did she file any responding materials despite being served with the Motion to Change in mid-May 2024. ¹ As a result, a case conference before a judge was scheduled for October 4, 2024.

28The father also initiated a Motion to Change the child support order with his first wife. Significant child support arrears had accumulated for him in this regard. He testified that the amount of child support arrears owing to his first wife was over $60,000. The DRO report in connection with his case with his first wife demonstrates that they resolved that matter and withdrew from the FRO. The husband deposed that he had hoped the mother would respond to this Motion to Change to resolve this matter as well.

29On October 4, 2024, a case conference took place before Rhinelander, J. Rhinelander, J.’s Endorsement notes that the mother did not attend the conference nor did she file any materials. The father was directed to attend a Motion to Change hearing today in person.

30The father was not able to give any evidence on record regarding his income from the date of the 2010 McGee Order to 2014.

The Law

31Since the parties are married, the Divorce Act, RSC 1985, c 3 (2nd Supp) is the applicable statute. Section 17(1) of the Divorce Act provides that a court may make an order varying, rescinding, or suspending, retroactively or prospectively, a support order or any provisions of one, on application by either former spouse.

32Section 17(4) provides that before the court makes a variation order in respect of a child support order, the court is to satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order in respect of that order.

33Section 17(6.1) confirms that when making a variation order in respect of a child support order, the court is to apply the applicable child support guidelines.

34In the case of Colucci v. Colucci, 2021 SCC 24, the Supreme Court of Canada summarized the framework for applications made by a payor to retroactively decrease child support in paragraph 113 as follows:

1. The payor must meet the threshold of establishing a past material change in circumstances. The onus is on the payor to show a material decrease in income that has some degree of continuity, and that is real and not one of choice.

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, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.

4. The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. ² 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 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. Finally, once 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.

35As explained in Colucci, a claim for rescission of arrears is based on a present or future inability to pay. Paragraph 133 of Colucci explains that “Although applications for rescission raise different considerations than those for a retroactive decrease of support based on a change in circumstances, in practice, both will frequently arise together. While a payor may simply ask for accumulated arrears to be forgiven on the basis of a current and ongoing inability to pay without challenging the accuracy of the underlying order, rescission applications will normally arise when the request to retroactively decrease arrears is unsuccessful or results in only a partial reduction of the arrears (see, e.g., Templeton v. Nuttall, 2018 ONSC 815, at para. 39; H.G.S. v. J.R.M., 2018 ABQB 892, at para. 113).”

36The payor’s ongoing financial capacity is the only relevant factor. The payor must therefore provide sufficient reliable evidence to enable the court to assess their current and prospective financial circumstances, including their employment prospects and any assets, pensions, inheritances, or other potential sources of future capacity to pay.

37Accordingly, in the category of cases where a payor seeks rescission of arrears, the payor must overcome a presumption against rescinding any part of the arrears. The presumption will only be rebutted where the payor parent establishes on a balance of probabilities that—even with a flexible payment plan—they cannot and will not ever be able to pay the arrears ([Earle v. Earle, 1999), at para. 26; Rosemary Leonor Corcios v. Edgar Zenon Alfaro Burgos, 2011 ONSC 3326, at para. 55; Gray v. Rizzi, 2016 ONCA 152, at para. 58). Present inability to pay does not, in itself, foreclose the prospect of future ability to pay, although it may justify a temporary suspension of arrears (Haisman v. Haisman (Q.B.), at para. 26). This presumption ensures rescission is a last resort available only where suspension or other creative payment options are inadequate to address the prejudice to the payor. It also encourages payors to keep up with their support obligations rather than allowing arrears to accumulate in the hopes that the courts will grant relief if the amount becomes sufficiently large. Arrears are a “valid debt that must be paid, similar to any other financial obligation”, regardless of whether the quantum is significant (Bakht et al., at p. 550).

38This case highlights one of the mischiefs of delayed applications to retroactively decrease support: as the years go by, it becomes more difficult to produce reliable income information, such as tax returns. For example, the father cannot produce evidence of his income earned or income tax returns before 2014.

39Payors are reminded that the onus is on them to establish that a retroactive decrease is warranted based on reliable evidence, and that parties to litigation are subject to a general obligation to disclose all information that is relevant and material to the case (Kinsella v. Mills, 2020 ONSC 4785, at para. 166).

Analysis

Issue 1: Has the father met the onus of establishing a material change in circumstances?

40The father has not been employed since he lost his employment in 2010, after the 2010 McGee Order was made. Going from earning $65,000 a year to being on Ontario Works, earning less than $15,000 a year is a material change in circumstances.

41The father’s last 10 years’ of income tax returns demonstrate that his line 150/15000 income from 2014 onward has been mostly Ontario Works. The notices of assessment show the following:

• 2014: $10,459
• 2015: $10,775
• 2016: $9,363
• 2017: $8,432
• 2018: $14,355
• 2019: $14,451
• 2020: $8,796
• 2021: $8,796
• 2022: $10,342
• 2023: $8,796

42The father was not able to put forward any evidence of his income between 2010 and 2014 on the record.

43I find that the father’s Notices of Assessment from 2014 onward demonstrate a material change in circumstances which would have resulted in a different child support order than that which was ordered in the 2010 McGee Order.

Issue 2: Was there Effective Notice?

44Once there is a finding of a material change in circumstances, a presumption arises in favour of a retroactive decrease of the child support to the date the payor gave effective notice to the recipient, up to 3 years before the formal notice: Bolsover v. Nissen, 2022 ONCH 35, at para. 48.

45The presumption in decrease cases that support will be reduced back to the date of effective notice strikes a fair balance between the certainty interest of the child and recipient and the payor’s interest in flexibility: Colucci, at para. 82. While recipients should be aware that support in the Guidelines era varies with payor income, they are at an informational disadvantage. The recipient is entitled to rely on the court order or agreement in the absence of proper communication and disclosure by the payor showing a decrease in income that is lasting and genuine (H.G.S. v. J.R.M., 2018 ABQB 892, at para. 87).

46What qualifies as “effective notice” must be viewed in light of the information asymmetry between the parties and the way that certainty, flexibility, and the child’s best interests play out in retroactive decrease cases.

47I agree with the comments in Colucci, at para. 87:

In the decrease context, by contrast, experience has shown that it is not enough for the payor to merely broach the subject of a reduction of support with the recipient. A payor seeking a retroactive decrease has the informational advantage. The presumptive date of retroactivity must encourage payors to communicate with recipients on an ongoing basis and move with reasonable dispatch to formalize a decrease through a court order or change to a pre-existing agreement. The timing and extent of disclosure will be a critical consideration in ascertaining whether and when effective notice has been given and determining whether to depart from the presumptive date of retroactivity.

48As a result, in decrease cases, therefore, courts have recognized that effective notice must be accompanied by “reasonable proof” that is sufficient to allow the recipient to “independently assess the situation in a meaningful way and respond appropriately” (Gray v. Rizzi, 2016 ONCA 152, at para. 62, citing Corcios, at para. 55; Templeton, at para. 51).

49This ensures that effective notice provides a realistic starting point for negotiations and allows the recipient to adjust expectations, make necessary changes to lifestyle and expenditures, and make informed decisions (Hrynkow v. Gosse, 2017 ABQB 675, at para. 13; Hodges v. Hodges, 2018 ABCA 197, at para. 10).

50Even where the payor has given proper effective notice, the period of retroactivity is presumed to extend no further than three years before the date of formal notice: Colucci, at para. 91. This three-year presumptive rule was established by the majority in D.B.S. to incentivize recipients seeking a retroactive variation to move discussions forward and to protect the payor’s certainty interests (para. 123).

51Where no effective notice was given before proceedings were commenced, the start date of the variation will generally be the date of formal notice.

52The father’s evidence is that the very first time the mother would have known that he was taking steps to change the 2010 McGee Order, rescind the child support arrears and/or reduce his child support obligation was in August 2022 when FRO reached out to her to conduct a child status review of their daughter.

53While the mother was aware the FRO was conducting a child status review, the letter from FRO indicates that the mother did not agree that L. was no longer entitled to child support because she turned 18, given that she was enrolled in school full-time. It is not clear to the court that the mother was made aware of the father’s intention to go to court to change the terms of the 2010 McGee Order at that time in 2022.

54The affidavit of service indicates that the mother was served with the father’s Motion to Change as of May 13, 2024, which I find is the date upon which she was clearly made aware that he was seeking to rescind the child support arrears. There was no effective notice in this case and, as a result, the formal notice, the date on which the mother was served with the father’s Motion to Change is the date of formal notice. According to D.B.S. and Colucci, therefore, the period of retroactivity should extend no further than three years before the date of formal notice – that would be May 2021.

Issue 3: Should the presumptive rule of a change only to the date of formal notice be applied?

55The court retains the discretion to depart from the presumptive date of retroactivity where the result would be unfair. In exercising its discretion the court is to consider the D.B.S. factors namely, if the payor has an understandable reason for delay in seeking a decrease, the payor’s conduct, the child’s circumstances, and any hardship to the payor if support is not reduced viewed in the context of hardship to the recipient and child if support is decreased.

56The father is seeking to expunge all arrears that have accumulated under the 2010 McGee Order because shortly after the child support order was made, he lost his employment and experienced a material change in his financial circumstance, though no fault of his own.

57The mother, however, only received notice of the father’s intention to expunge all of the arrears which accumulated under the 2010 McGee Order in 2024, 14 years later.

58I find that the father’s delay in bringing his Motion to Change earlier was based on the dramatic impact losing his employment had on him and the ensuing mental health difficulties he faced. His difficulties were then compounded by his lack of resources and lack of legal assistance. He also compounded the problem by not having filed income tax returns for at least the past ten years. This is a justifiable delay in my view.

59The second factor is the payor’s conduct. Blameworthy conduct is conduct that has “the effect of privileging [the payor’s] interest over the child’s right to support: D.B.S., at para. 106 and Colucci, at para. 101.

60I find that the father did not pay any child support once he lost his employment in 2010. He did not, however, write to the mother and explain his circumstances or let FRO know what had happened. Instead, he was immobilized and took no steps. While I don’t believe this was blameworthy conduct on his part, it cannot be ignored that the mother had no communication at all from the father.

61The circumstances of the child are the third factor. If the child had experienced hardship or is currently in need, this factor militates in favour of a shorter period of retroactivity. There is no evidence on record that L. experienced hardship or that she is currently in need. The mother could have participated in these proceedings and chose not to.

62A retroactive decrease in the father’s child support obligation will not result in the mother being required to make a repayment to the father. There is no evidence that a retroactive decrease in child support will cause the child any hardship. The father’s evidence is that the child enjoyed a high standard of living with the mother, as the mother remarried and has remained employed since the 2010 McGee Order was made. The child lived in Hamilton, went to Guelph University and has a future focussed on becoming a teacher.

63The final factor is hardship to the payor if the period of retroactivity is not lengthened beyond the presumptive date. The payor must also provide a complete picture of their financial situation, including income, assets and debts: Colucci, at para. 107.

64I find that the father has put forward a complete picture of his financial circumstances. I am persuaded that he has demonstrated he will suffer hardship if the arrears are only reduced to the presumptive date, which is May 2021, and the period of retroactivity is not lengthened.

Issue 4: Is this an exceptional circumstance where the court should rescind the father’s child support arrears?

65A payor's request for relief from payment of arrears based on a current inability to pay generally will not result in the rescission or reduction of arrears unless the payor has established, on a balance of probabilities, that he cannot and will not ever be able to pay the arrears. Evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of the child and cannot be bargained away by the recipient parent. Therefore, the fact that the mother did not reach out to the father or demand payment of the child support arrears is irrelevant to the court’s determination about the recission of arrears.

66Where, however, the payor demonstrates that a change in circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by rescinding arrears. As Chappel J. stated in Templeton [at para. 55]"[the court] may determine that it is appropriate to retroactively suspend enforcement of the support order during the time when the payor was unable to pay, or decrease the amount of child support owed during that time and reduce or rescind the arrears owing accordingly".

67The wording of s. 17 of the Divorce Act makes clear that what it authorizes is rescission of the underlying court order or a term of the order which gave rise to the unmet obligations. Thus a claim to cancel arrears asks the court to set aside an existing and accurate court order, replace it with another, and forgive what is otherwise a legally enforceable debt.

68It has long been held that child support should not attract more leniency than other debts is reinforced by the range of maintenance enforcement regimes which exist across the country to enforce compliance with child support obligations. The FRO administers child support orders to ensure children receive the support owed to them under court orders, including by taking enforcement action such as garnishing wages and suspending drivers’ licenses (see, e.g., Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c 31). Further, child support arrears are not released by an order of discharge under the Bankruptcy and Insolvency Act, RSC 1985, c B-3, s. 178(1)(c); these debts are prioritized even where providing a clean slate is a competing policy consideration (see Brown, at para. 42; St-Jules v. St-Jules, 2012 NSCA 97, at para. 50). Thus, s. 17 of the Divorce Act is not to be used to reduce or vacate arrears too readily, as this would undermine the recognition and enforcement of serious legal obligations.

69The court has a range of available options when faced with proven payor hardship. A court’s refusal to rescind arrears does not mean the payor must pay the entire amount immediately (Earle v. Earle, 1999). If the court concludes that the payor’s financial circumstances will give rise to difficulties paying down arrears, the court ought to first consider whether hardship can be mitigated by ordering a temporary suspension, periodic payments, or other creative payment options (Haisman v. Haisman (Q.B.), at paras. 32‑33, rev’d on other grounds (1994), 1994 ABCA 249; Templeton, at para. 47; Brown v. Brown, 2010 NBCA 5, at para. 44). The FRO may also allow the debtor to enter into a reasonable payment plan where the debtor has fallen into arrears and is struggling to keep up with payments (see, e.g., The Family Maintenance Act, CCSM c F20, s. 56.2(2) and (3); J. D. Payne and M. A. Payne, Child Support Guidelines in Canada, 2020 (2020), at p. 476). After all, blood cannot be drawn from a stone—where the payor is truly unable to make payments toward the arrears, “any enforcement options available to the support recipient and the court are of no practical benefit” (Brown, at para. 44).

70The child support arrears represent sums that could have been paid at the time payments came due, but were not. The payor parent’s claim for rescission is thus a form of “hardship” application, in which there has been no past change in circumstances justifying a retroactive decrease in the support obligation (Brown v. Barber, 2016 ABQB 687, at paras. 15‑16; Brown, at para. 43).

71Courts have taken a highly restrictive approach to the availability of rescission or suspension of child support based solely on current and ongoing inability to pay (see, e.g., Haisman, at paras. 26‑27; Gray, at para. 58; C.L.W. v. S.V.W., 2017 ABCA 121, at para. 30; Punzo, at para. 46; Blanchard v. Blanchard, 2019 ABCA 53, at para. 32; S.A.L. v. B.J.L., 2019 ABCA 350, at para. 12; Semancik v. Saunders, 2011 BCCA 264, at para. 25; Mayotte v. Salthouse, 1997 ABCA 145, at para. 2; Heiden v. British Columbia (Director of Maintenance Enforcement), at paras. 10 and 13). These cases demonstrate that any discretion to grant relief in this context is narrow.

72This strict approach to rescission and suspension of arrears based on current inability to pay is justified. The interests of the recipient and child in certainty and predictability are paramount, as the payor has failed to comply with a court order or agreement without any “excuse for non-payment of support when it came due” (Templeton, at para. 47). The child’s interest in a fair standard of support is subverted when the payor directs support elsewhere; in such circumstances, “the child effectively subsidizes the payor’s improved standard of living” (Walsh v. Walsh, at para. 25, with additional reasons (2004)). The payor parent, on the other hand, “cannot argue that the amounts claimed disrupt his/her interest in certainty and predictability” (D.B.S., at para. 98).

73While the presumption in favour of enforcing arrears may be rebutted in “unusual circumstances” (Gray, at para. 53), the standard should remain a stringent one. Rescission of arrears based solely on current financial incapacity should not be ordered lightly. It is a last resort in exceptional cases, such as where the payor suffers a “catastrophic injury” (Gray, at para. 53, citing Tremblay v. Daley, 2012 ONCA 780).

74The court has no income information for the father from 2010 to 2014. Using the notices of assessment for the father, from 2014 to 2023, his child support obligation under the Child Support Guidelines would have been as follows:

Year	Income on NoA	Table Child Support (as per December 31, 2011 Tables)
2014	$10,459	Nil
2015	$10,775	Nil
2016	$9,363	Nil
2017	$8,432	Nil
2018	$14,355	$67 a month x 12 = $804 (as per Nov. 22, 2017 Tables)
2019	$14,451	$69 a month x 12 = $828
2020	$8,796	Nil
2021	$8,796	Nil
2022	$10,342	Nil
2023	$8,796	Nil

Total child support owing: $1,632

75The 2010 McGee Order was in place starting July 26, 2010. Under this order, the father was obliged to pay $300 a month in table child support, which amounts to $1,500 for the period August 1, 2010 to and including December 1, 2010; $3,600 for each of 2011, 2012 and 2013, totalling $12,300.

76The FRO statement of arrears, dated June 9, 2022 demonstrates that from September 1, 2010 to and including December 1, 2014 (52 months), child support arrears of $15,600 had accumulated, calculated as $300 a month x 52 months and FRO garnished a total of $2,820.76 from the father, leaving child support arrears of $12,779.24.

77Starting 2015, FRO was not able to garnish any monies from the father.

78I do not find that the father has met the onus of demonstrating that a change in his circumstances took place between 2010 and 2014. He did not have any evidence on record of his income during that 3 ½ year period. However, the FRO statement of arrears demonstrates that they were garnishing funds from employment insurance the father was receiving. He clearly did not have the ability to pay the child support that had been ordered by McGee, J. The father, however, did not take steps to bring a Motion to Change or enter into a payment plan with the FRO.

79Looking at the father’s notices of assessment from 2014 to the current date, the father would only have owed child support in 2018 and 2019 when his income exceeded $11,000. Based on the chart set out in paragraph 74 above, the father owes child support under the Child Support Guidelines in the total sum of $1,632 from 2014 to date. I do find that the father met his onus of demonstrating an inability to pay child support from 2014 onward.

80I am persuaded that the father has rebutted the presumption against rescinding any part of the arrears because he has established on a balance of probabilities that—even with a flexible payment plan—he cannot and will not ever be able to pay the arrears that have accumulated under the 2010 McGee Order, which appear to be $41,436.15. The evidence on record is that the father receives $733 monthly from Ontario Works and he pays $500 to rent a room, leaving him $233 a month to pay for food and other necessities. I am, therefore, reducing the arrears calculated by FRO of $41,436.15 to $1,500, recognizing there was child support owing to the mother from 2010 to 2014, for which the father ought to pay. The father shall pay down the arrears at the rate of $50 a month starting April 1, 2025 and the first day of each following month until the arrears are paid off, which should take 30 months.

Order

81This court makes the following order:

a. The child support arrears which have accumulated under the order of McGee, J., dated July 26, 2010, FRO case number 0701348, are hereby reduced to $1,500, to be paid off by the father at the rate of $50 a month starting on April 1, 2025 and on the first day of each following month until they are paid.

b. SDO shall issue.

c. All other arrears accumulated under FRO file number 0701348 are hereby rescinded.

Deborah A. Kraft

Footnotes

1. 1The affidavit of service indicates that the process server attempted to serve Sheryl on May 3rd, May 8th and May 10th unsuccessfully and finally served her on May 13, 2024 at 3:25 p.m.
2. 2The reference to D.B.S. is D.B.S. v. S.R.G., 2006 SCC 37, 2 S.C.R. 231.