Reasons for Decision

Court File No.: FC-22-291
Date: 2025/01/24
Ontario Superior Court of Justice

Re: Mark Thompson, Applicant
– and –
Vanessa Sorrenti, Respondent

Counsel:
Alison J. Campbell, for the Applicant
Meagan LePage, for the Respondent

Heard: December 3, 2024

Justice Marie-Josée Audet

Introduction

[1] The sole issue to be decided in this one-day focused trial is whether a retroactive child support award should be made against the Applicant father for the years 2014 to and including 2023.

[2] More specifically, I am asked to decide whether the father should be required to pay retroactive child support, and if so, from what date, considering his failure to comply with his yearly disclosure obligations as set out in the Parenting Agreement signed by the parties in 2013. Additionally, I am asked to decide the impact, if any, of the Respondent mother’s own failure to disclose her income annually, to request such disclosure from the father, and to seek a formal adjustment of the father’s child support obligations until this matter was brought before the court in 2022.

Background and Uncontested Facts

[3] Most of the facts relevant to the issues in dispute are not contested.

[4] The parties were never married and never cohabited. They are the biological parents of R.G.S., who was born in September 2013 and who is currently 11 years old. Shortly after R.G.S.’s birth, the parties entered into a Parenting Agreement, dated December 19, 2013, which addressed parenting issues and child support. According to the Parenting Agreement, the mother had sole custody (as it was then called), the father had reasonable access, and the father was required to pay child support in the amount of $586.91 based on his net income of $64,291 as well as his proportionate share of the child’s section 7 expenses.

[5] The mother was on maternity leave at that time, which decreased her annual employment income from the $50,000 range to $34,268 in 2013. The Parenting Agreement provided that the parties would evaluate and otherwise agree on the daycare costs for the child once the mother was back at work. Aside from daycare costs, section 7 expenses were to be shared in proportion to income, but only if they were discussed and agreed to in advance.

[6] Pursuant to s. 3(G) of the Parenting Agreement, the parties were to exchange their respective income tax returns, any associated Notices of Assessment, and any relevant slips or schedules on or before July of each calendar year, at which time the father’s support obligations would be reviewed.

[7] The father’s parenting time varied over the years as R.G.S. grew up, and from late 2018 until October 2020, she was spending every other weekend with her father (from Thursday to Sunday), as well as extra time during holidays. From late September 2020 to March 2021, the father was deployed with the Canadian Armed Forces in Ukraine. During that time, he was unable to exercise in-person parenting time with R.G.S. However, upon his return from Ukraine in 2021, and due to the COVID-19 pandemic which prevented R.G.S. from attending school in person, the parties agreed that she would be spending more time in her father’s care.

[8] Unfortunately, a dispute arose between the parties in the fall of 2021 over parenting issues which prompted the father to file an Application seeking joint decision-making, equal parenting time, and an order that R.G.S. continue to be registered at Joan of Arc Academy (“Joan of Arc”), a private elementary school for girls in Ottawa. The mother filed an Answer in which she sought sole decision-making, primary residence, and the ability to register R.G.S. at St. Philip Public School (“St. Philip”), in Richmond, the community in which the mother and her new partner had already or were soon moving into. In her Answer, the mother was simply seeking an order confirming the father’s ongoing child support obligations from 2022 onwards.

[9] The mother states that it only became clear in June 2022, on the eve of the first Case Conference, that the father was earning significantly more income than what he was basing his child support on. The mother sought leave to amend her pleadings to include a claim for a retroactive adjustment of child support back to January 2014. As the father would not provide his consent, the mother filed a 14B motion seeking leave to amend as well as financial disclosure back to 2014, which was granted on October 21, 2022, by Engelking J. The mother says that this was the first time since the parties signed the Parenting Agreement that she received any income disclosure from the father.

[10] In the context of a mediation session held in 2023, the parties settled the parenting issues by agreeing to (essentially) maintain the status quo in place before the father’s deployment to Ukraine (i.e., sole decision-making and primary residence to the mother and parenting time to the father every other weekend and during holidays). The parties also resolved the father’s child support obligations from March 1, 2024, onwards.

[11] Throughout all the relevant years, the father was employed by the Canadian Armed Forces on a full-time basis, and during some years he was also employed on a part-time basis in the reserve forces. It is not disputed that he never provided the mother with a copy of his tax returns or Notices of Assessment since the Parenting Agreement was signed. He states, and this is highly disputed, that on a yearly basis he confirmed to the mother what his income was, either verbally or by showing her a copy of his T4 slip (“T4”). Although he testified at trial that he may have given the mother a hard copy of his T4s on a few occasions, up until trial his position had been that he had showed her copies of his T4s without providing her with a hard copy.

[12] Throughout all the relevant years, the mother was employed by Scotiabank. Her employment income increased over the years, although it was significantly less during the years 2021 to 2023 because of two maternity leaves. It is not disputed that she never disclosed her own income information to the father as required by the Parenting Agreement, nor did she ever provide receipts for the daycare costs she was incurring for R.G.S. It is also not disputed that she never sought full financial disclosure from the father and that she never made a request to formally adjust the father’s child support. Any adjustment in the father’s monthly child support payments over the years were made voluntarily and unilaterally by the father, who would simply confirm the new amount payable.

[13] For the purpose of this trial [1], the parties’ income for all relevant years is not disputed. It is as follows:

[14] It is also not disputed that between 2014 and 2022 (before this Application was commenced) the father voluntarily increased his child support payments on a few occasions: in September 2014 ($600 per month), in early 2016 ($900 per month) and in October 2019 ($975 per month).

[15] In the summer of 2020, the parties agreed to register R.G.S. at Joan of Arc. The monthly tuition at this school (which included before and after school childcare) was $1,670 per month, and it was agreed between the parties that the father would be responsible to pay 100% of these costs. The father confirmed that his new monthly child support payment would be $720, which he began paying in August 2020. This was a verbal agreement between the parties which was never consigned in writing.

[16] R.G.S. attended Joan of Arc for two academic years (2020 to 2021 and 2021 to 2022). In September 2022, she began attending school at St. Philip’s in Richmond. The change of school was permitted by Corthorn J. following a disputed urgent motion brought by the father and heard in April 2022. In the context of that motion, the father was seeking an order that R.G.S. was to remain at Joan of Arc, whereas the mother wanted to transfer her to St. Philip, which was in the catchment of her new home in Richmond. In July 2022, before R.G.S. began attending St. Philip, the father increased his monthly child support to $1,210 per month. His monthly child support was increased twice thereafter: in January 2023 ($1,607 per month) and in January 2024 ($1,609 per month).

[17] There is a dispute as to the total costs paid by the father towards R.G.S.’s private schooling at Joan of Arc. He states that these costs totalled $43,389.90 for the two academic years she spent there and included an application fee of $500 per year and $3,060 in after-school daycare costs (gross). The mother’s evidence is that the total costs were in the amount of $37,269, which includes $3,060 in after-school daycare costs (gross). [2]

[18] There is a dispute as to whether the child support payments made by the father during the years 2016 to 2020 included a contribution towards R.G.S.’s daycare costs or not. There is also a dispute over how much child support the father paid during the years 2018 to and including 2023 (there is a difference of $6,737 between the parties’ respective positions).

[19] The mother is not seeking a contribution towards past section 7 expenses, other than for childcare expenses. The total (gross) cost of childcare expenses incurred by the mother for the years 2014 to and including 2023 amounts to $37,581 (estimated net amount of $24,477).

Position of the Parties

[20] The mother alleges that the father has withheld his income information and purposely misled her into believing that he was paying child support in accordance with the Federal Child Support Guidelines (“Guidelines”) based on his yearly income. She denies that the father ever provided her with confirmation of his yearly income or any documentary financial disclosure. She also denies the father’s allegation that he showed her or otherwise shared a copy of his T4s during any of the relevant years and alleges he did not do so until he was ordered by the court in the context of this proceeding.

[21] According to the mother, it was only in this court proceeding that she discovered, for the first time, that the father had never paid Guideline support. She explains that she did not pursue the father for his income tax information because she understood based on their written communications that he was adjusting his child support in accordance with the Parenting Agreement as his income increased. She states that she assumed he was simply earning the usual small standard raises every few years and that any increase in the child support he was required to pay would be nominal at best. She says that whenever the father advised her of a change to his child support obligation, she trusted that he was adjusting same based on the Guidelines.

[22] The mother takes the position that she is owed a retroactive adjustment of basic child support based on the father’s true income, as revealed by his income tax information, retroactively to January 1, 2014. She also seeks a proportionate contribution from the father toward the child’s childcare costs during those years. If her position is accepted, the total arrears owing by the father for this entire period (ten years), including net childcare costs, is $91,469. She also seeks pre-judgment interest from 2014 onwards.

[23] The father’s position is that he should not be obligated to pay any retroactive child support adjustments. He alleges that he provided the mother with confirmation of his income annually, either verbally or by showing her a copy of his T4. His evidence at trial was that his income tax returns and Notices of Assessment are classified information which, as a highly ranked employee of the Canadian Armed Forces, he is not at liberty to disclose (or at least that was his understanding at the time).

[24] The father argues that the mother was always satisfied by the increased amount he was proposing to pay, regardless of the amount mandated by the Guidelines. He points to the fact that she never sought disclosure of his income or sought to formally adjust the child support payable to her. He suggests that the mother did not raise any objections or seek a formal exchange of financial information because she did not wish to share her own income increases over the years.

[25] Alternatively, if the court is inclined to make a retroactive award, the father argues that it should be limited to a period of three years from the date of formal notice, which is when the mother filed an Amended Answer in 2022. If the court makes a retroactive award of any kind, he seeks to be credited 100 percent of the private school tuition and childcare he paid to Joan of Arc for the child.

Legal Framework

[26] The legal principles applicable to the decision I have to make were clearly set out by the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, and further expanded and explained in Michel v. Graydon, 2020 SCC 24, and Colucci v. Colucci, 2021 SCC 24. The analytical framework that the court is required to undertake was summarized as follows at para. 114 of Colucci:

[114] It is also helpful to summarize the principles which now apply to cases in which the recipient applies under s. 17 to retroactively increase child support:

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient to show a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income, strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications for disclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child support to the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the application to vary. In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice.

d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel. If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines.

[27] In Michel, the SCC summarized the important principles governing child support, at para. 10, which were also previously endorsed by the Court in D.B.S.:

[10] In D.B.S., this Court endorsed certain important principles governing orders for child support (including retroactive child support) that merit restating here:

• Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child's parents (para. 38);
• Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38);
• The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the “necessities of life” (paras. 38-45);
• Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay support commensurate with their income (para. 2);
• Retroactive awards are not confined to “exceptional circumstances” or “rare cases” (para. 5); and
• In determining whether to make a retroactive award, the payor parent's interest in certainty in his/her obligations must be balanced with the need for “fairness and ... flexibility”. A court should consider whether the recipient parent’s delay in seeking retroactive support was reasonable in the circumstances, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail (para. 133).

[28] It is within this general legal framework that I must decide whether to make a retroactive award of child support and if so, quantify it.

Analysis

Factual Findings

[29] There are only a few factual disputes that I need to decide in this trial: whether the father disclosed his income over the years (verbally or otherwise); the total amount of child support paid by the father over the relevant period (including daycare contributions); and the total costs paid by the father to Joan of Arc for R.G.S.’s private schooling.

[30] On all these issues, I accept the mother’s evidence.

[31] I find that the father never disclosed his yearly income to the mother since the Parenting Agreement was signed. Indeed, the mother’s evidence is that at the time the Parenting Agreement was signed, the only proof of income provided by the father was a recent paystub and a T4 for the previous year.

[32] I simply do not accept that the mother, having full knowledge of the father’s significant income increases since 2014, would not have sought an adjustment of his child support obligations. Although the mother re-partnered on or about 2020, until that time she was a single parent supporting herself and R.G.S. on her modest income, supplemented by the father’s child support payments. In fact, as soon as the mother found out about the father’s actual income in 2022, she immediately moved to amend her pleadings to seek a retroactive adjustment of child support from 2014 onward.

[33] Additionally, it is obvious that the father has been very resistant to sharing his income information, even in the context of this court proceeding, despite his clear obligation to do so pursuant to the Family Law Rules, O. Reg. 114/99 (“Rules”) and orders requiring him to do so. His evidence at this trial was that he considered his income tax returns and Notices of Assessment to be classified information, given his employment within the military. This evidence is simply not credible, especially when one considers the clear language of the parties’ Parenting Agreement (to which he consented) which made it mandatory for these documents to be disclosed yearly.

[34] Despite the Rules and court orders requiring the father to provide copies of his complete income tax returns for the years 2014 to and including 2023, to the date this trial was heard, he continuously refused to disclose them (except for his 2021 tax return) and only provided his Notices of Assessment. He resisted the mother’s request to amend her pleadings, as well as her request for financial disclosure, and forced her to bring a motion seeking orders in that regard. All of this establishes a clear pattern of resistance-refusal to fully disclose his income.

[35] Moreover, having looked at some of the written communications between the parties over the years (which were attached as exhibits to the mother’s affidavits), it is obvious that the father misled the mother into believing that he was adjusting his child support obligations in accordance with the Guidelines. As an example, when R.G.S. began attending Joan of Arc, the cost of which was to be fully assumed by the father, he adjusted his child support payments and implied that the new figure reflected what the child support Table amount should be without childcare contribution (without any mention as to what his income was). When the mother, after receiving a larger child support payment than she expected based on the parties’ earlier communications, texted the father to ask if he had e-transferred too much, he responded by stating “[n]ope, I just deducted the school cost, I make a bit more because I got the raise in my army position for hitting maturity in my new rank so 720 is right.” Given his income at the time, and the fact that he had clearly agreed to cover all R.G.S.’s private school fees, the amount payable ought to have been $1,824 (not $720).

[36] The evidence as a whole supports the mother’s contention that she was never provided with any information about the father’s yearly income and that she always understood, based on the father’s communications, that he was adjusting his child support payments in accordance with the Parenting Agreement and in line with the Guidelines as his income increased over the years.

[37] As for the amount of support actually paid by the father during the relevant years, I prefer the mother’s evidence over the father’s as well, because the father’s credibility continues to be negatively impacted by his failure to provide full and frank financial disclosure. His refusal to provide his yearly income tax returns makes it challenging to ascertain the net cost of some of the expenses he claims in relation to the tuition and childcare costs. During his testimony, the father acknowledged that a portion of the tuition paid by him was considered a “donation” to the school, which he could deduct from his taxes. Although the father is a certified accountant in the military, his testimony in relation to the tax treatment of R.G.S.’s tuition was vague and ambiguous.

[38] Further, the father’s sworn financial statement does not include all relevant information about his current financial circumstances. For instance, while he includes in his monthly expenses 100 percent of his day-to-day expenses (including housing), he fails to confirm his spouse’s income or to provide any indication as to her contributions towards their joint living expenses. He also omitted to include in his assets his pension plan with the Canadian Armed Forces, or to provide accurate details in relation to his shareholdings and investments.

[39] Despite being ordered to provide same, the father did not provide any documentary evidence of the amounts he paid to Joan of Arc for R.G.S.’s private schooling. His evidence at trial was that this information is available to the public and, therefore, he is not required to provide it.

[40] Any discrepancy in the parties’ positions on this issue ought not to be resolved in favour of the party who failed to provide all relevant disclosure as required by the Rules and as ordered by the court. I find that the total costs paid by the father to Joan of Arc is $37,269, and I accept that the father’s total child support payments to the mother during the years 2014 to and including 2023 (which includes any contribution he made towards childcare expenses) totalled $91,769, as calculated by the mother.

Should a Retroactive Award Be Made?

[41] Given the above, it will not come as a surprise that I consider the father’s failure to disclose his yearly income, as required by the Parenting Agreement and the Guidelines, as serious blameworthy conduct. While the date of a retroactive support award is generally the date of formal notice, the SCC in Colucci confirmed that if the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct, and the date of retroactivity will generally be the date of the increase in income.

[42] The father’s position that there should be no retroactive adjustment of child support because “[a]t no time prior to the commencement of this litigation did the [mother] raise any concern whatsoever, with regard to [his] financial contributions to [R.G.S.]”, and that “[a]t no time did [she] seek to change existing child support arrangement[s] or suggest that she was not content with same”, is disingenuous. How could the mother have raised any objections when she was never made aware of the fact that the father’s income had more than doubled in the years following the execution of the Parenting Agreement? The mother’s failure to raise any concerns about the amount of child support paid by the father was based on her understanding that, other than small incremental increases in the father’s income over the years, his income remained within the range of what it was at the time the Parenting Agreement was signed.

[43] I acknowledge that the mother never made a formal request for financial disclosure from the father as required by the Parenting Agreement. Although she may have been quite naïve to accept the information the father was providing whenever he advised her of a change in his support obligations, it is difficult to judge someone who simply chose to trust the information conveyed by the other parent as to their ongoing financial obligations, particularly when that parent voluntarily increases his monthly child support.

[44] The following excerpt from the SCC’s decision in Michel, addresses this reality (at para. 32):

[32] Retroactive child support awards will commonly be appropriate where payor parents fail to disclose increases in their income. Again, D.B.S. is instructive: “… a payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct” (para. 107). And where the strategy for avoiding child support obligations takes the form of inadequate or delayed disclosure of income, the effect on the child support regime is especially pernicious. This is because the methodology adopted by the Federal Child Support Guidelines, SOR/97-175, which are expressly incorporated in the FLA, results in information asymmetry. Apart from shared parenting arrangements, the Guidelines calculate child support payments solely from the payor parent’s income. At any given point in time, therefore, the payor parent has the information required to determine the appropriate amount of child support owing, while the recipient parent may not. Quite simply, the payor parent is the one who holds the cards. While an application-based regime places responsibility on both parents in relation to child support (D.B.S., at para. 56), the practical reality is that, without adequate disclosure, the recipient parent will not be well-positioned to marshall the case for variation. [Emphasis added.]

[45] In my view, the mother’s delay in seeking formal disclosure and an adjustment of child support was due to the father’s failure to disclose his income, and the misleading information he provided over the years meant to make the mother believe that he was complying with his child support obligations pursuant to the Guidelines and the Parenting Agreement when he was not. In other words, I find that the mother did not know that the father earned significantly more income than what he was earning at the time the Parenting Agreement was entered into.

[46] The father has no interest in certainty that is worthy of protection in this case. He knew what his child support obligations were, he knew what his income was, and he knew that he was not complying with the terms of the Parenting Agreement or with his obligations as a support payor under the Guidelines.

[47] The father argues that a retroactive award should not be made, because the mother has provided no evidence that the child has suffered financially or has gone without anything that she needed. This argument is easily disposed of when reading the following guidance from the SCC in Michel:

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

[48] The mother’s evidence is that, as a single parent from 2014 to 2020 who was earning a modest income, she was not well-off financially and had to carry high-interest debts to ensure that R.G.S. had everything she needed. During the father’s deployment in Ukraine, R.G.S. was in her full-time care, and due to the pandemic, she had to take time off from work until she was able to secure childcare. I do not need supporting evidence of the mother’s allegation that she had to carry high-interest debts to ensure R.G.S. never went without. Given her income during those early years, and her status as a single parent, it is easy to conclude that R.G.S. did not enjoy the standard of living to which she was entitled based on the level of income that her father earned at the time. It is also easy to conclude that the mother has had to make significant sacrifices to ensure that all R.G.S.’s needs were met.

[49] The father continues to earn an income of almost $200,000 per year. He has no debt. He has also re-partnered and shares day-to-day expenses with his new partner. As stated above, the father’s sworn financial statement does not provide the court with a full and frank appreciation of his current financial circumstances. From that, I draw the adverse inference that he is in a financial position to satisfy the retroactive award that I make today.

Date of Retroactivity

[50] On the facts of this case, and for the reasons set out above, I find that the date of retroactivity is January 1, 2014, which is the year that the father’s income materially increased.

Quantification of the Retroactive Award

[51] Based on the father’s actual income, the total amount of basic child support that he should have paid for the years 2014 to and including 2023 was $159,965, detailed as follows:

[52] He paid a total of $91,769 during those years (including any contributions he may have made to R.G.S.’s childcare expenses, if any), resulting in an underpayment of $68,196.

[53] The father asks that he be given a credit representing the cost he had to assume on his own to cover R.G.S.’s tuition at Joan of Arc. In D.B.S., the Court reminded us that, when assessing whether to make a retroactive award, consideration should be given to whether the conduct of the payor parent may have had the effect of fulfilling his/her support obligation. The Court states “[f]or instance, a payor parent who contributes for expenses beyond his/her statutory obligations may have met his/her increased support obligation indirectly” (at para. 109).

[54] While I accept that R.G.S.’s enrollment at Joan of Arc in September 2020 was agreed to by the mother based on the father’s offer to cover the entire cost on his own, and that the mother would not have consented otherwise because she could not afford it [3], this is not the end of the analysis. At that time, the mother was receiving $975 in monthly child support from the father, and she was earning $96,127 as a single parent. In those circumstances, it is understandable that the mother would not have been prepared to pay for private schooling for R.G.S., particularly when she was unaware of the actual proportion of those costs that she would have been responsible to pay.

[55] However, to the extent that a retroactive award of child support is made for the two academic years during which R.G.S. was registered at Joan of Arc, based on the father’s actual income (exceeding $200,000 per annum), I am of the view that it would be unfair not to consider the significant costs he assumed in that regard.

[56] As stated by Corthorn J. in her interim decision on the issue of schooling, the mother was very much agreeable to R.G.S. attending Joan of Arc beginning in 2020, for various reasons related to the child’s best interests. The only caveat for her was that she was not in a financial position to contribute to those costs. Had the mother been receiving the proper amount of support at that time ($1,824 per month), and had she known that her contribution to those costs would have been limited to 20-30% of the net cost, her position might have been very different.

[57] In this trial, the mother is seeking a retroactive contribution from the father towards all childcare costs she incurred since 2014 for R.G.S. It is not disputed that the mother also failed to provide disclosure of her yearly income since the Parenting Agreement was signed, and that she never provided the father with documentary confirmation of the childcare costs that she incurred (except in the context of this litigation). Just like the father, the mother’s own failure to comply with the clear terms of the Parenting Agreement in relation to her own disclosure obligations also constitutes blameworthy conduct.

[58] In her testimony, the mother explained that since she was not seeking a contribution towards R.G.S.’s section 7 expenses, she understood that her income was irrelevant and that there was no need for her to provide her yearly financial disclosure. This, however, does not explain why she never provided documentary confirmation of R.G.S.’s childcare costs. To now seek a contribution towards costs for which she never provided proper disclosure at the time would lead to an unjust result, in my view.

[59] The SCC in all three cases cited in this decision reiterated that courts ordering a retroactive award must still ensure that the quantum of the award fits the circumstances. The determination of quantum is a very discretionary exercise, having regard to all relevant factors and fairness principles.

[60] In my view, fairness is achieved in the circumstances of this case by denying both parents their claims for a contribution by the other parent towards the childcare and private tuition costs incurred by them over the relevant years.

Pre-judgment Interest

[61] In the circumstances of this case, I am not prepared to order the father to pay pre-judgement interest on unpaid child support. In my view, the mother bears some responsibility in not seeking proper financial disclosure from the father over the relevant years, or a formal review of his child support obligations. For that reason, I find that imposing pre-judgment interest is not appropriate in this case.

Order

[62] Based on all the above, I order the father to pay to the mother retroactive child support in the amount of $68,196 for the years 2014 to and including 2023.

Costs

[63] If the parties are unable to agree on costs, I will accept written submissions not exceeding five (5) pages each, double-spaced, plus Bill of Costs and any relevant offers to settle, in accordance with the following timelines:

• The mother to provide her submissions by February 7, 2025;
• The father to provide his submissions by February 21, 2025;
• The mother to provide a brief reply, if any, by February 28, 2025.

Justice Marie-Josée Audet
Date: January 24, 2025

Endnotes

[1] The mother states that, given the father’s deployment abroad, a portion of his income is exempt from taxation, giving rise to a higher income for child support purposes than disclosed in his Notices of Assessment. However, the father never provided his full income tax returns (except for the year 2021), which made it impossible to determine what his true income was for child support purposes. However, for the purpose of this trial, the mother was prepared to accept that his income is as set out in his Notices of Assessment.

[2] The father, in his evidence, stated that he paid $9,180 to Joan of Arc Academy on account of after-school care, but the mother, in her reply affidavit, included an email from the school confirming that over R.G.S.’s entire tenure there, the total amount paid for after-school care was $3,060.

[3] This was undisputed during the motion held in April 2022 to determine R.G.S.’s choice of school for the year 2022-2023: see Thompson v. Sorrenti, 2022 ONSC 2481, para 12.