Court File and Parties

Court File No.: FS-24-43640-0000 Date: 2025-08-21 Superior Court of Justice - Ontario

Re: Gulsanga Butt, Applicant And: Abdul Butt, Respondent

Before: M. Kraft, J.

Counsel: Sophia Cripouris, for the Applicant Respondent, In person

Heard: August 19, 2025

Endorsement

Nature of the Motion

[1] Gulsanga Butt ("the mother") seeks an order that the respondent, Abdul Butt ("the father"), pay:

(a) retroactive table child support for the parties' 6-year-old daughter, for the period December 2019, to August 31, 2025, in the sum of $14,983;

(b) his 72.4% proportionate share of the child's retroactive s.7 expenses in the sum of $1,272.02;

(c) prospective table child support of $924 a month based on his 2024 income of $90,318 starting September 1, 2025;

(d) his 72.4% of the child's prospective s.7 expenses being speech therapy; and

(e) costs of this motion.

[2] The father seeks an order that no retroactive child support is owing by him; and that his prospective child support obligation be based on his 2024 annual income as adjusted in accordance with Schedule III of the Federal Child Support Guidelines, SOR 97/175 ("CSG") by deducting his union dues and further adjusted to consider the high costs associated with him exercising parenting time given that he resides in Quebec and the child lives in Toronto.

Background

[3] By way of brief factual and procedural background:

(a) The parties were married in Montreal on September 14, 2017. They separated 5-months later on March 25, 2018; at which time the mother was pregnant.

(b) The mother moved back to Toronto after separation and the baby was born there on November 1, 2018.

(c) The father remained in Montreal. He did not see the child between March 18, 2019, and October 2021.

(d) On July 5, 2019, when the child was 8 months old, the mother filed an application in the Ontario Court of Justice seeking decision-making responsibility and other relief related to the child. She did not seek child support at the time. She was self-represented. According to the father, he did not seek an order that the child move to Montreal given her young age at the time.

(e) At a case conference, the parties reached a resolution, the terms of which are incorporated into the order of Scully, J., dated August 28, 2019, which, among other things, grants the mother primary residence of the child and sole decision-making responsibility.

(f) On December 11, 2019, the mother formally requested child support from the father in writing.

(g) In June 2020, the father agreed to pay the mother $686 a month on a temporary without prejudice basis as child support. The child support amount was based on his 2019 income of $76,544 using the Quebec tables.

(h) The father then commenced an application in Quebec for a divorce. The parties reached a consent on February 6, 2021, and an addendum on February 1, 2022, the terms of which were incorporated into their Quebec Divorce Judgment, dated February 21, 2022. The Divorce Judgment sets out that child support being paid by the father to the mother on an interim without prejudice basis was $686 a month; the amount of child support is without prejudice to the mother's right to seek retroactive and prospective child support and s.7 expenses and without prejudice to the father contesting this; and the parties acknowledged that Ontario has jurisdiction over all child-related issues including parenting and child support.

(i) On July 7, 2021, the father started a Motion to Change in the Ontario Court of Justice seeking to vary the child support terms in the Quebec Divorce Judgment. This raised an issue as to whether Ontario had jurisdiction to vary a temporary child support order made in Quebec under the Divorce Act. In response, the mother sought retroactive and prospective child support.

(j) After four case conferences, the parties reached a further consent, the terms of which were incorporated into the Final Consent Order of Sirirvar, J., dated May 16, 2022, which set out the father's parenting time. There are no terms in the Order about child support.

(k) In May 2023, the child was diagnosed with Autism Spectrum Disorder ("ASD"). She has Level 2 ASD and requires substantial support with accompanying language impairment. As a result of her developmental issues, the child attends school half-days and is with the mother for the other half-days.

(l) On February 2, 2024, the parties executed a partial separation agreement, and agreed to withdraw their respective claims stemming from both parties' Motions to Change and the mother agreed to start a new application to address child support by February 15, 2024.

(m) This application is the mother's new application to address child support.

(n) It is agreed that the father has consistently paid table child support to the mother since June of 2020.

(o) The father is a bus driver for the City of Montreal. His 2024 Line 15000 income based on his 2024 notice of assessment was $90,318.

(p) Since the separation, the mother has been the child's primary caregiver. She has also been enrolled in a part time degree at Athabasca University. She is in her 5th year of a 6-year Bachelor of Arts program in psychology. Her Line 15000 income in 2024 was $0.

(q) Their daughter is now 6 years old, and she lives with the mother primarily in Toronto.

(r) The father currently has parenting time once a month. He travels from Quebec to Ontario to exercise his parenting time. Initially, the father had parenting time in Toronto twice a month. On December 13, 2024, he advised the mother that his parenting time will take place on the last Saturday of each month in Toronto.

(s) In September 2025, the child will start Grade 1 and will continue to attend school half-days.

(t) The child's section 7 expenses include speech therapy. Over time, she will also require substantial supports including occupational therapy, daycare, summer programs, and uninsured medical and dental expenses.

Issues for the Court to Decide

[4] The issues for the court to decide on the motion are as follows:

(a) Should the father pay the mother retroactive child support from December 2019 to August 31, 2025, and if so, in what amount?

(b) What is the father's ongoing child support obligation for the parties' daughter starting September 1, 2025?

Issue One: Should the father pay the mother retroactive child support from December 2019 to August 31, 2025, and if so, in what amount?

[5] The jurisdiction to make an interim child support order is found in s.15.1(1) of the Divorce Act. Pursuant to s. 15.1(4), the court may make an order and impose terms, conditions or restriction in connection with the interim order as it thinks fit and just.

[6] Parents have an obligation to support their children in a way that is commensurate with their income. This obligation, and a child's concomitant right to support, exists independent of any statute or court order: S.(D.B.) v. G.(S.R.), 2006 SCC 37 at para. 54 ("D.B.S.")

[7] The D.B.S. factors are used by the Court in determining whether a judge is to exercise his or her discretion in making a retroactive child support award and are set out below:

(a) Has the recipient parent supplied a reasonable excuse for delay?

(b) The conduct of the payor;

(c) Circumstances of the child; and,

(d) Hardship for the payor.

[8] 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: D.B.S., at para. 107.

[9] The presumptive date for retroactive child support is the date the payor received effective notice meaning: any indication by the recipient parent that child support should be paid, and no more than three years before this date. Broaching the topic is what is required: D.B.S., at paras. 5, 118, 121, 123.

[10] As set out in Colucci v. Colucci, 2021 SCC 24, once a past material change in circumstances is established, the following framework applies:

(a) A presumption arises in favour of retroactively increasing child support to the date of effective notice, which may be up to three years before formal notice of the application to vary.

(b) If effective notice was not given, support should generally be increased back to the date of formal notice.

(c) The court retains discretion to depart from the presumptive date of retroactivity to avoid unfairness.

(d) Once the appropriate start date is determined, the amount owing must be quantified.

[11] Where it is determined that there should be an order for retroactive support, courts should attempt to craft a retroactive award in a way that minimizes hardship. This is because retroactive awards are based on prior income and the payor parent may not have access to the funds to pay a retroactive award immediately. Pursuant to s. 11 of the Guidelines, child support may be made payable in periodic payments, in a lump sum, or a combination of the two: D.B.S., at para. 116.

[12] However, the mother seeks a lump sum payment of the retroactive table child support arrears in this case from the father based on his past failure to pay child support in accordance with his increased income.

[13] In applying the D.B.S. factors to the facts of this case, I make the following findings:

(a) The mother gave the father effective notice that she was seeking child support from him on December 11, 2019. Despite having this notice, she submits that other than one voluntary child support payment of $300 in 2019, the father did not make any payment of child support to her until June 2020. The father does not dispute that the mother gave him effective notice she was seeking child support on that date.

(b) The father did not provide the mother with updated or accurate financial disclosure of his income after June 2020 when he agreed to pay child support in the sum of $686 a month. He did not provide the mother with any notice of justifiable reason for delaying the increase in his child support payments. It was clear from the mother that she was seeking child support for the parties' child and the father ought to have disclosed the increases in his income annually. In this manner, his conduct was blameworthy.

(c) The child's circumstances are such that she was diagnosed with ASD in 2023. She was born to separated parents. She has only ever resided with the mother, who is responsible to look after all of her needs, and who is not earning an income. There is no doubt, in these circumstances, that the child would have benefitted from child support being paid in the appropriate quantum by the father, based on his increased income.

(d) The father makes submissions that he will have hardship if he is ordered to pay child support arrears. He submits that he incurs significant costs associated with having to exercise parenting time once a month.

[14] Now that I have determined retroactivity is appropriate to the date of effective notice, the quantum of retroactive child support must be calculated.

The mother's retroactive child support calculations

[15] Using the Quebec CSG tables, the mother calculates the father's retroactive child support obligations using the following levels of income:

Year	Father's Income	Quebec Table Child Support
2019	$78,070	$699 a month
2020	$79,438	$711 a month
2021	$82,067	$734 a month
2022	$112,995	$973 a month
2023	$93,179	$825 a month
2024	$90,318	$924 a month

[16] After giving the father credit for the child support payments he has made to her, the mother calculates his retroactive table child support obligation to be $14,983 for the period December 2019 to and including August 31, 2025. She seeks an order that he make this retroactive child support payment to her within 60 days. Her calculations are attached to her affidavit, sworn on August 6, 2025, at Exhibit "K".

[17] The father argues that the mother has miscalculated his income for child support purposes as well as his retroactive child support obligation because she failed to consider the adjustments required to the calculation of his income set out in Schedule III to the CSG.

[18] Pursuant to s.16 of the CSG, a spouse's annual income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III. Schedule III of CSG sets out that where a spouse is an employee, the applicable employment expenses as described in the Income Tax Act are deducted, including but not limited to dues and other expenses of performing duties.

[19] I agree with the father that the mother has miscalculated his income for child support purposes, in ignoring the adjustments to his income set out in Schedule III by failing to reduce his income by his union dues. Relying on the T4 statements provided by the father in these proceedings, I calculate his arrears of table child support to be $10,157 as compared with the $14,983 sum calculated by the mother. My method of calculation is set out in the chart below:

Year	T4 Income	Sched III adjustment	Income for child support purposes	Quebec Tables	What he paid	Arrears
2019	$78,070	-$1,606	$76,464	$685	$300	$385
2020	$79,438	-$1,606	$77,832	$8,352 $696 a month	$4,906 $703 in Jun and July $700 for Aug-Dec	$3,446
2021	$82,067	-$1,606	$80,461	$8,640 $720 a month	$7,938 $2,450 Jan-April $5,488 May-Dec	$702
2022	$112,995	$1,606	$11,389	$11,520 $960 a month	$8,232 $686 a month	$3,288
2023	$92,179	$1,642	$91,537	$9,744 $812 a month	$8,232 $686 a month	$1,512
2024	$90,318.59	-1,773.35	$88,545.24	$6,312 $789 a month	$5,488 $686 a month x 8	$824
					TOTAL ARREARS	$10,157

[20] In terms of retroactive s.7 expenses, the mother seeks a retroactive contribution from the father for his proportionate responsibility, being 72.4% of the child's speech therapy totalling $1,272.02. The mother has provided invoices for the s.7 expenses.

[21] I find that the child's speech therapy is extraordinary, necessary in light of the child's special needs, and reasonable in the circumstances.

[22] Given my obligation to craft a retroactive award in a way that minimizes hardship to the father, now that I have calculated his table child support arrears to be $10,157 and his s.7 expense arrears at $1,272.02, I must determine whether the retroactive award shall be payable immediately as the mother seeks within 60 days, or whether under s. 11 of the Guidelines, I will order it may be made payable in periodic payments.

[23] Given that the father will have a prospective child support obligation to the mother and that he incurs high expenses to exercise his parenting time with the child, I am persuaded that the father should pay total child support arrears of $11,429.02 (calculated as retroactive table child support for the period December 2019 to and including August 31, 2025, in the sum of $10,157, and his proportionate share of the child's s.7 expenses of $1,272.02) payable over 24 months in periodic payments of $476.21 a month.

Issue Two: What is the father's ongoing child support obligation for the parties' daughter starting September 1, 2025?

[24] The mother seeks an order that the father pay her table child support of $924 a month starting September 1, 2025, based on his 2024 Line 15000 income set out in his Notice of Assessment of $90,318 pursuant to the Quebec CSG.

[25] I have already determined that the father's income for child support purposes, as adjusted by Schedule III for his union dues for 2024 was $88,545.24, as opposed to $90,318. For one child, the Quebec Tables on an annual income $88,545.24 amounts to $789 a month or $9,468 a year.

[26] The father also asks that his child support obligation be lowered to take into account the high costs he is incurring to travel from Montreal to Toronto to have parenting time once a month with the child.

[27] The father calculates his monthly travel expenses to be between $550 - $600 during the winter months and $650 during the summer months. He deposes that the average annual travel costs for him to exercise his parenting time is between $7,300 - $8,000 a year and asks the Court to exercise its discretion to either deviate from the Table amount by reducing his monthly obligation or to lower his proportionate responsibility for the child's s.7 expenses to account for his travel costs.

[28] The father relies on relocation cases as jurisdiction for the court to reduce his child support obligation. Specifically, he points to s.16.95 of the Divorce Act which provides that if a Court authorizes the relocation of a child, it may provide for the apportionment of costs related to the exercise of parenting time by the non relocating spouse with the relocating costs. The mother argues that the father's argument in this regard is flawed because this is not a relocation case. Instead, the mother moved to Toronto prior to the child being born. I agree with the mother, this is not a relocation case and, as a result, s.16.95 of the Divorce Act is not applicable.

[29] Alternatively, the father argues that the Court has jurisdiction to award an amount of child support that is different than the amount set out in the Tables if the court finds that the payor spouse would suffer undue hardship. Section 10(2) of the CSG sets out the circumstances that may cause a spouse to suffer undue hardship and in subparagraph (b) it refers to a spouse having unusually high expenses in relation to exercising parenting time with a child. The father submits that since July 2021, the total cost he has incurred in travel expenses to exercise his parenting time amounted to $33,628.

[30] The mother does not dispute the father's estimate that the annual cost of travel he incurs to exercise his parenting time is between $7,300 and $8,000 a year, the midpoint being $7,650. This represents 8.6% of the father's gross annual income.

[31] It may well be that the father's Table child support obligation should be reduced or that his travel costs should be considered to alter his proportionate responsibility for the child's s.7 expenses, however, if the father wishes to make this claim, he must make an undue hardship claim and complete the standards of living test set out in Schedule II to the CSG, as required in s.10(3) of the CSG. He has not done so.

[32] Accordingly, any prospective order for child support shall be temporary and without prejudice to the father's right to argue undue hardship and a retroactive adjustment to when he started coming to Toronto for his parenting time.

[33] On or before June 15th in each year, starting with June 15, 2026, the parties shall exchange income tax returns and/or notices of assessment. The parties shall adjust the monthly child support based on the previous year's income tax return starting on July 1st in each year, starting on July 1, 2026.

[34] In terms of the father's prospective obligation to pay the child's s.7 expenses, the only current s.7 expense of the child is speech therapy.

[35] After imputing the mother with a minimum wage income of $35,776 a year[1], the parties' proportionate share of the child's s.7 expense would be 71.25% and the mother's proportionate responsibility for the child's s.7 expense is 28.75%, based on their combined incomes of $124,321.24 ($88,545 + $35,776).

Order

[36] This Court makes the following order:

(a) Starting September 1, 2025, and on the 1st day of each following month until the child support adjustment is made, the father shall pay the mother temporary and without prejudice child support of $789 a month for the parties' child, born on November 18, 2018, representing the Quebec Table amount of child support for one child on an adjusted guideline income of $88,545.24 a year.

(b) Starting September 1, 2025, the father shall pay his proportionate share of the child's s.7 expenses, currently speech therapy, being 71.25% of the cost of these expenses, based on the father's annual adjusted income and an imputed income for the mother of $35,776.

(c) The quantum of child support set out in subparagraphs a. and b. above are without prejudice to the father making a retroactive undue hardship claim based on his unusually high expenses in relation to exercising parenting time with the child and the mother disputing this claim.

(d) Starting September 1, 2025, and on the first day of each following month for 24 months, the father shall pay the mother retroactive child support, both Table and for s.7 expenses for the period December 11, 2019, to and including August 31, 2025, in an additional sum of $476.21 per month until the arrears are satisfied.

(e) On June 15th in every year, starting on June 15, 2026, the parties shall exchange income disclosure, being their filed income tax returns, notices of assessment and any other information required by s.21 of the CSG[2], and they shall adjust the Table child support owing by the father based on his previous years' Line 15000 income starting July 1st in each year, starting on July 1, 2026. The Quebec table amount of child support shall be based on the father's Line 15000 income, less his annual union dues and any other adjustments as per Schedule III of the CSG.

(f) The parties shall consult with one another in advance of incurring any section 7 expenses and shall agree in writing (including via App Close, email or text message) prior to any additional expense being incurred, except in urgent or exceptional circumstances.

(g) Consent to a proposed section 7 expense shall not be unreasonably withheld, having regard to the child's best interests, the necessity and reasonableness of the expense, and the parties' financial circumstances.

(h) The party seeking contribution to a section 7 expense shall provide the other party with proof of payment (e.g., receipt or invoice) within 30 days of incurring the expense.

(i) Upon receipt of such documentation, the other party shall reimburse their proportionate share of the expense within 30 days, by e-transfer or another agreed-upon method.

(j) The father shall pay the above child support and section 7 expenses through the Family Responsibility Office (FRO) pursuant to the Family Responsibility and Support Arrears Enforcement Act.

(k) Since the father resides in the province of Quebec, this order be forwarded by FRO to Quebec's Direction des pensions alimentaires (DPAE) for enforcement, in accordance with the Interjurisdictional Support Orders Act and reciprocal enforcement agreements between Ontario and Quebec.

(l) The parties shall complete and deliver all necessary registration documents to FRO within 30 days of the date of this Order, including any forms required for interprovincial enforcement.

(m) The father shall provide the mother and FRO with his current residential address and employer's contact information in Quebec within 10 days of the date of this Order and shall advise of any changes in address or employment within 10 days thereafter.

(n) SDO to issue.

(o) The mother is entitled to costs. The parties are encouraged to agree on costs. If they are unable to do so, they shall exchange written costs submissions of no more than 3 pages in writing, not including a Bill of Costs and/or Offers to Settle. The mother shall serve and file her costs submissions within 14 days of the release of this Endorsement and the father shall serve and file his responding costs submissions within 10 days of being served with the mother's costs submissions.

M. Kraft, J.

Date: August 21, 2025

[1] The current minimum wage in Ontario is $17.20 an hour, x 40 hours a week x 52 weeks a year = $35,776.

[2] Reference to section 21 of the CSG regarding income disclosure requirements.