Ontario Superior Court of Justice – Family Court

Court File No.: FC581/22
Date: January 6, 2025

Between:
Jenny Lynn Sousa
Applicant
(Counsel: Rebecca K. Reiss)

- and -

Kevin Sousa
Respondent
(Self-represented)

Heard: December 17 and 19, 2024

Reasons for Judgment
B. Tobin

Introduction

[1] The applicant (“mother”) seeks child support from the respondent (“father”), both ongoing and retroactive to the date of separation.

[2] The father agrees that he should pay retroactive child support, but not as much as the mother asks.

[3] The parties last lived together on August 10, 2018, after four years of marriage. They are the parents of twins who are now 11 years of age. Both children live in the primary care of the mother. This has been the case since the parties separated.

[4] The parties were able to resolve all the parenting issues.

[5] At the opening of trial, the father also agreed with the mother’s request for ongoing child support in the amount of $647 per month based on his 2023 annual income of $43,460. He also agreed to keep the children covered under whatever benefit plan he may have through his employment.

Issues

[6] The issues to be decided in this case are:

1. What amount of retroactive Table child support is the father to pay to the mother?
2. What amount of retroactive and prospective s. 7 expenses is the father to contribute towards?

Background Facts

[7] The mother is 38 years old. The father is 41 years of age.

[8] The parties married on October 24, 2014. They are the parents of two children, Remy Sousa, and Reese Sousa, both born October 6, 2013.

[9] The mother and children moved from the matrimonial home on August 10, 2018. The parties have not resumed cohabitation since that date.

[10] The children have lived primarily in the mother’s care since August 10, 2018. The father has the children in his care on alternate weekends.

[11] The mother is not gainfully employed at this time. She last worked outside of her home on June 30, 2023. She left her employment as she was about to give birth to another child. Since leaving her employment, the mother has been at home with the twins and her now 17 months old child.

[12] The mother is in receipt of Ontario Works. This social assistance enables her to obtain medications that she could not otherwise afford.

[13] The mother hopes to return to work on a part-time basis with her former employer. Before this can happen, the mother needs to make suitable and affordable childcare arrangements for her youngest child.

[14] The father has worked for many years as a form setter for various concrete companies. His income each year is comprised of employment income and employment insurance benefits. The income he has earned is as follows:

• 2019: $67,426
• 2020: $60,279
• 2021: $59,323
• 2022: $48,930
• 2023: $43,460
• 2024: anticipated income of $43,460

[15] The father’s income dropped in 2022 because of health issues. He required surgery and is no longer able to meet all of the physical demands of the job he had. He changed employers. He now works for a company where he does work that he is physically able to do.

[16] The father’s employment is seasonal. He works as a labourer from spring until the beginning of winter. The rest of the year he is in receipt of employment insurance.

[17] The father’s current employer is a non-union company. Accordingly, the father does not have benefits available to him which he would have if he was a member of a labour union. However, the father’s evidence is that he expects that the employer’s business will grow such that he will be able to work all year and the employees of the business will eventually become unionized.

[18] This year the father negotiated with his employer for a more comprehensive benefit plan in lieu of a wage increase. He will maintain the children as beneficiaries under this plan.

[19] The application for this case was issued on May 31, 2022. The respondent was served with the application on June 13, 2022.

[20] At the case conference held before Justice Korpan on January 4, 2023, the parties consented to an order on a without prejudice basis that the father pay interim interim child support to the mother for the two children in the amount of $300 per month without any determination of income being made at the time.

[21] On February 5, 2024, Justice R. Macfarlane made an order on consent that the father pay to the mother child support for the two children in the amount of $624 per month, also on a without prejudice basis, based on the father’s estimated income being $42,000 per year.

Issue #1: What Amount of Retroactive Table Child Support Is the Father to Pay to the Mother?

[22] The mother asked that the father’s child support obligation begin immediately following the parties’ separation, which she claims was on August 10, 2018. This is the day she and the children left the matrimonial home. The parties never resumed cohabitation after that. The mother’s evidence is that from and after that date, there has been no reasonable prospect that they would resume cohabitation.

[23] However, it was the father’s evidence that he had hoped that the parties would reconcile. They did things together that appeared to him to be as a family.

[24] The intent to separate does not need to be mutual, it can be a unilateral decision of one party. However, one cannot separate in secret. The intent to separate needs to be communicated either directly or through behaviour.

[25] In this case, the parties did not resume cohabitation nor does the evidence suggest that they attempted to reconcile.

[26] In her application, under family history, the mother stated that the date of separation was August 10, 2018. In his answer filed in this case, the father agreed that the mother’s family history was correct.

[27] For these reasons, I accept that the date of separation was August 10, 2018.

[28] Based on the father’s disclosed income since the date of separation, and support payments made by him, the mother claims that the amount of retroactive and retrospective Table child support owing is $53,134, calculated as follows:

Year	Mr. Sousa Income for support	Table support monthly	Support annual	Support paid annual	Arrears
2018 (from Sept.)	$67,148	$1,023.00	$4,092.00	$0.00	($4,092.00)
2019	$67,426.00	$1,027.00	$12,324.00	$0.00	($12,324.00)
2020	$60,279.00	$919.00	$11,028.00	$500.00	($10,528.00)
2021	$59,401.00	$905.00	$10,860.00	$0.00	($10,860.00)
2022	$48,930.00	$737.00	$8,844.00	$0.00	($8,844.00)
2023	$43,460.00	$647.00	$7,764.00	$1,200.00	($6,564.00)
2024	$43,460.00	$647.00	$7,764.00	$3,750.00	($4,014.00)
Total					($53,134.00)

Legal Considerations: Retroactive Child Support

[29] The Divorce Act, R.S.C., 1985, c. 3, provides that a court may make an order requiring a spouse to pay support for children of the marriage (s. 15.1(1)). When making a child support order, the court is required to do so in accordance with the applicable child support guidelines (s. 15.1(3)). The presumptive amount of child support is to be the amount set out in the applicable Table according to the number of children under the age of majority and the income of the person from whom support is sought: see Federal Child Support Guidelines, SOR/97-175, s. 3(1)(a).

[30] The court has the power to order retroactive child support in an original application in appropriate circumstances: see D.B.S. v. S.R.G., 2006 SCC 37, at para. 84.

[31] Where the court is asked to make a retroactive child support order, the court must consider the four factors enunciated in D.B.S. None of the four factors are decisive, and it is necessary to take a holistic view of the facts of the case. The D.B.S. factors may be set out as follows: (1) reasonable excuse for why support was not sought earlier; (2) conduct of the payor parent; (3) circumstances of the child; and (4) hardship occasioned by a retroactive award: see D.B.S., at paras 100-116.

[32] Counsel referred the court to a decision by Chappel J., A.E. v. A.E., 2021 ONSC 8189, and in particular para. 199 of the decision, which sets out the framework for the analysis.

[33] There is no evidence that the mother gave effective notice to the father of her request for child support. Formal request for child support occurred when the application was issued and served.

[34] The mother argues that there was no delay in her requesting child support. This is based on her submission that the father knew that he had an obligation to pay child support because he was obliged to pay child support for another child. I accept that the father knew he had to pay child support because of his obligation to another of his children. However, and with respect, this is not, in the circumstances of this case, a sufficient reason for the mother’s delay in giving notice of her claim for child support. The mother did not provide evidence that she brought this issue up with the father in the period before the court case was started. The evidence is that the father made small payments prior to the litigation in the amount of $500. The father’s evidence was that he also contributed help in-kind. I accept the mother’s evidence that the in-kind assistance the father provided was not significant.

[35] As noted in A.E., there is a presumption of granting retroactive relief in original proceedings up to a maximum of three years prior to the date when the recipient gave formal notice to the payor. In this case, therefore, the presumptive date would be June 1, 2019, three years prior to the commencement of the application.

[36] The next consideration is the conduct of the payor. Blameworthy conduct in this context is anything that privileges the payor parent’s own interests over the children’s right to an appropriate amount of support. This includes a payor parent who knowingly avoids or diminishes their support obligations to their children. Payor parents should not be allowed to profit from this. In this case, the father knew he had a child support obligation. He knew that because he had a child support obligation towards another child from a different relationship. The father also engaged in blameworthy conduct in not making all of the child support payments required under the order of Justice Korpan dated January 4, 2023. To his credit, the father has been in substantial compliance with the support order of Justice R. Macfarlane. Some months he did not pay the full amount, but this was always caught up. At present, he has not yet paid all of the December 2024 child support.

[37] The mother also argues that by working for cash, the father is engaged in blameworthy conduct. The father’s evidence in this regard is that while he is laid off from his employment, he helps his friends for a little extra cash and does not declare this income when completing his income tax returns. The father’s evidence is that the amount he earns in this manner is minimal. While I am not condoning the father’s failure to report the income, I accept that the amount involved is not significant.

[38] I must also consider the circumstances of the children. The mother submits that she has insulated the children from the financial consequences of the father not paying support in a timely manner. She had to work two jobs to make ends meet. She applied for and received social assistance so that she could afford medications that she required but could not afford on her own. The father is not to be absolved completely just because the mother was able to struggle and meet the children’s needs.

[39] The final consideration is any hardship that would be occasioned by a retroactive order. The mother seeks a retroactive order of $50,000. She acknowledges that the father does not have this amount. Requiring the father to pay this sum would result in significant hardship for him. She argues that any hardship can be mitigated by the father being required to pay, on account of retroactive child support, monthly installments that are within his budget. She proposes that the amount be $300 per month.

[40] When I take all of these factors into account holistically as I am required to, I find that the father’s obligation to pay retroactive child support for the children should start January 1, 2020. This date balances all of the considerations mentioned above. The father knew he was obliged to provide support for all of his children; his failure to provide child support required the mother to bear this responsibility with only limited financial support from the father. I must also take into account the father’s financial circumstances. He, like the mother, is of limited means and since the Justice R. Macfarlane order was made has met his obligation in a mostly timely manner. The father has the ability to pay on account of retroactive child support by way of monthly payments.

[41] Based on the foregoing, I fix the amount of retroactive (from January 1, 2020 until May 31, 2022) and retrospective (from June 1, 2022 to December 31, 2024) child support in the amount of $37,500. This support is to be repaid at the monthly rate of $100 for two years commencing January 1, 2025 and $300 thereafter until all the arrears are paid. This will give the father time to organize his financial commitments such that he is able to meet this obligation.

Issue #2: What Amount of Retroactive and Retrospective s. 7 Expenses Is the Father to Contribute Towards?

[42] The Child Support Guidelines, provide that the guiding principle in apportioning the costs of special and extraordinary expenses is in proportion to the parties’ respective incomes: s. 7(2), (3), and (4).

[43] The father asks that all s. 7 expenses be shared on a 50/50 basis. He offered no reason why the court should depart from the guiding principle. The mother asserts that s. 7 expenses are to be shared both retroactively and prospectively in proportion to both parties’ annual incomes. I agree with the mother.

Prospective s. 7 Expenses

[44] On a prospective basis, s. 7 expenses will include:

a. Extraordinary expenses for primary and secondary education: St. Mary’s Choir school fees;

b. Extraordinary expenses for extraordinary activities: (1) annual hockey registration expense for Reese; and (2) musical theatre for Remy. This does not include soccer fees for Reese. This expense is considered part of the Table support the father pays: s. 7(1.1)(a); and

c. Orthodontic expenses: the father is to reimburse the mother his proportionate share of the monthly payments due to the orthodontist.

[45] In his evidence, the father agreed that these were appropriate activities for the children.

[46] Before the mother incurs any further s. 7 expenses, she shall consult with the father to determine the reasonableness of the activity and the proposed expense in relation to their financial circumstances and in accordance with this order in relation to joint decision-making responsibility.

Retroactive s. 7 Expenses

[47] The mother also asks for reimbursement of s. 7 expenses already incurred – the retroactive claim.

[48] On consent, the father is to reimburse the mother $225 on account of a dental claim made with respect to Remy. Specifically, the mother paid the dentist, but the insurance company reimbursed the father $225 for this expense, and the father did not pay the money he received from the insurance company to the mother. [1]

[49] The mother also asks for reimbursement of s. 7 expenses already incurred. The father is to reimburse the mother for s. 7 expenses she proved she already paid. This reimbursement is to be calculated on the basis of the parties’ actual incomes in the year the expense was incurred. The mother’s income was as follows:

• 2020: $26,566
• 2021: $22,903
• 2022: $20,081
• 2023: $16,549
• 2024: $16,549

[50] Based on the father’s income in both 2023 and 2024 of $43,460.00, and the mother’s income in those years, the father’s proportionate share of special and extraordinary expenses is 72%. [2]

[51] The expenses to be reimbursed and the father’s proportionate share are:

a. Remy’s 2024 YPA tuition at Needham’s School of Dance in the amount of $480.25 [3] − proportionate share $345.78.

b. Orthodontic expenses already incurred for Remy in 2024 – initial payment - $1,250 and December 2024 monthly instalment - $230 [4] − proportionate share $1,065.60.

c. Reese’s 2023/2024 hockey registration - $825 [5] − proportionate share $594.

d. Reece’s 2023 soccer registration (because he was not paying the required amount of child support at the time) in the amount of $360 [6] − proportionate share $259.20.

[52] The total amount of the father’s proportionate share and owed to the mother for these s. 7 expenses is $2,264.50.

[53] This sum of $2,264.50 shall be added to the amount owing for retroactive Table support and be included in the amount which is to be paid monthly by the father to retire his total retroactive child support debt.

Parenting

[54] The parties filed a partial offer to settle signed by both of them, and an approved a final order dealing with their parenting plan.

[55] The parties agreed to joint decision-making responsibility with respect to the children, subject to the mother having final decision-making responsibility, if they do not agree. They also agreed to a comprehensive parenting-time plan.

[56] I reviewed the parties’ respective 35.1 and 35.1A affidavits. I find that the parenting order sought by the parties is in the best interests of the children. It maintains a status quo that has been meeting all the needs of the children.

Divorce

[57] The parties have met all of the requirements necessary for the granting of a divorce. Accordingly, a divorce shall be granted.

Order

[58] For these reasons, the following order shall issue under the Divorce Act:

Divorce

1. A divorce order shall issue.

Parenting

2. The applicant and the respondent shall have joint decision-making responsibility for the children. The parties shall consult with each other prior to making major decisions for the children, regarding the child’s: a. Health, including major non-emergency health care; b. Education; c. Culture, language, religion and spirituality; and d. Significant extracurricular activities.

   Except as otherwise provided, the parties shall provide one another with relevant information concerning a necessary decision in the above matters, prior to making a major decision. If any party requests further information, it shall be provided within five days. Both parties shall consult with any relevant professional third parties including physicians, specialists, other clinicians or therapists, teachers, and educational professionals prior to any such decisions being made and give respect to their recommendations.

   If the parties do not then agree about a major decision to be made in the above categories concerning the children, after full consultation, the applicant shall have the final decision-making responsibility for the children.

3. The primary residence of the children shall be with the applicant.

4. The Respondent shall have parenting time on alternating weekends from Friday at 5:00 p.m. until Sunday at 7:00 p.m., and such further or other times as may be agreed between the parties. In the event that there is no school on the Friday or Monday immediately preceding the respondent’s parenting weekend, the parenting time shall be extended to include that day if the respondent is available to care for the children and not working, which he shall confirm no less than 48 hours before his parenting begins. The respondent shall be responsible for transportation for his parenting time.

5. Both parties shall be entitled to attend the special and extracurricular activities of the children regardless of the parenting schedule.

6. The following holiday parenting schedule shall override the regular schedule:

   a. Christmas: every year the children shall be in the care of the respondent from 5:00 p.m. on December 22nd until 10:00 p.m. on December 24th and the children shall be in the care of the applicant from 10:00 p.m. on December 24th until 5:00 p.m. on December 27th, and the balance of the time comprising the children’s Christmas vacation/break from school shall be evenly divided between the parties, the exact details of which shall be agreed upon between the parties prior to the children’s Christmas vacation/break.

   b. Easter: in odd numbered years, the children shall be in the care of the respondent Easter weekend from Thursday at 5:00 p.m. until Saturday at 8:00 p.m. and the children shall be in the care of the applicant from Saturday at 8:00 p.m. until Monday at 8:00 p.m. In even numbered years, the children shall be in the care of the applicant on Easter weekend from Thursday at 5:00 p.m. until Saturday at 8:00 p.m. and the children shall be in the care of the respondent from Saturday at 8:00 p.m. until Monday at 8:00 p.m.

   c. Thanksgiving: in odd numbered years, the children shall be in the care of the Respondent on the Thanksgiving weekend from Friday at 5:00 p.m. until Sunday at 10:00 a.m. and the children shall be in the care of the applicant from Sunday at 10:00 a.m. until Monday at 8:00 p.m. In even numbered years, the children shall be in the care of the applicant on Thanksgiving weekend from Friday at 5:00 p.m. until Sunday at 10:00 a.m. and the children shall be in the care of the respondent from Sunday at 10:00 a.m. until Monday at 8:00 p.m.

   d. The children shall be in the care of the applicant every Mother’s Day from 10:00 a.m. to 7:00 p.m.

   e. The children shall be in the care of the respondent every Father’s Day from 10:00 a.m. to 7:00 p.m.

   f. Summer: the children shall spend one uninterrupted week with each parent in each of July and August. The weeks shall run from Friday at 5:00 p.m. until the following Friday at 5:00 p.m. For greater clarity, the children’s weekends shall continue to run as on the regular schedule. The respondent shall have first choice of weeks in even years and notify the applicant of his weeks by June 1st of his choice. The applicant shall provide the respondent with her weeks by June 15th. The applicant shall have first choice of weeks in odd years and notify the respondent of her weeks by June 1st. The respondent shall provide the applicant with his weeks by June 15th.

7. The respondent shall advise the applicant of the address of where the children are sleeping when his parenting time takes place somewhere other than his own residence, and what other persons reside there.

8. Both the applicant and the respondent may make inquiries and be given information by service providers such as their teachers, school officials, doctors, dentists, healthcare providers, and others involved with the children.

9. The parties shall communicate only about the children, and only as necessary, in writing. All communication shall be polite, respectful, and child focused. Neither party shall speak ill of the other in the presence of the children, and they shall make every effort to prevent third parties from doing so. Neither party shall discuss adult issues, or the litigation with the children, and they shall make every effort to prevent third parties from doing so.

10. The applicant and the respondent shall be permitted to travel outside of Canada with the children with the advanced consent of the other parent, which shall not be unreasonably withheld, or a court order.

11. Should either parent travel with the children in accordance with the foregoing paragraph, the travelling parent shall provide the other with a detailed itinerary at least 14 days before the vacation begins, or as soon as possible, including the name of any airline carrier and flight times, accommodation, including address and telephone numbers, and details about how to contact the children during the trip.

12. The applicant shall be permitted to obtain government IDs for the children including but not limited to: SIN Card, Passport, Health Card etc. without the need for the consent or signature of the respondent. The applicant shall provide a copy of the children’s documents to the respondent upon renewal. The applicant shall provide the children’s original documents to the respondent if/as required, and the respondent shall promptly return same to the applicant.

Child Support

Prospective Table Child Support

13. Commencing on January 1, 2025, and on the first day of each month thereafter, the respondent shall pay Table child support to the applicant in support of the children, Remy Sousa, and Reese Sousa, both born October 6, 2013, in the monthly amount of $647, based on the respondent’s anticipated 2024 income of $43,460, and s. 3 of the Federal Child Support Guidelines.

Prospective Special and Extraordinary Expenses

14. Commencing January 1, 2025, the respondent shall contribute 72% of the applicant’s s. 7 special and extraordinary expenses which shall include (a) school fees associated with the choir and orchestra (music) program, (b) Needham School of Dance - youth and performing arts tuition, (c) annual hockey registration expense for Reese and (d) 24 monthly orthodontic fees of $230.

15. Before the applicant incurs any further s. 7 expenses, she shall consult with the respondent to determine the reasonableness of the activity and the proposed expense in relation to their financial circumstances and in accordance with this order in relation to their joint decision-making responsibility.

Retroactive Child Support

16. Retroactive Table child support owing by the respondent to the applicant for the period starting January 1, 2020 and ending December 31, 2024, are fixed in the amount of $37,500.

17. Retroactive s. 7 special and extraordinary expenses to December 31, 2024, owing by the respondent to the applicant, are fixed in the amount of $2,489.50. [7]

18. Commencing on January 1, 2025, and on the first day of each month until December 1, 2027, the respondent shall pay $100.00 per month, and from January 1, 2028 the respondent shall pay $300 per month to the applicant, until the total amount of retroactive child support owing in the amount of $40,214.50 ($37,500.00 + $2,264.50 + $225) is paid in full.

Health Coverage

19. The respondent shall maintain the children as beneficiaries of his extended health and benefits plan available to him through employment when and for so long as such benefits are available.

20. The respondent shall sign, if available, a direction to his health benefits provider to permit the applicant to directly submit claims for the children’s health-related expenses, and to directly receive reimbursements for same.

21. The respondent shall promptly submit any invoices for the children’s medical and dental expenses to his benefits provider as requested and reimburse the applicant immediately upon receipt of funds if he receives such reimbursement.

Ongoing Disclosure

22. For so long as child support is to be paid, the payor and recipient, if applicable, shall provide updated income disclosure to the other party by June 1 of each year, in accordance with s. 25(1) of the Federal Child Support Guidelines.

Costs

23. Counsel for the applicant provided her submissions with respect to costs. The parties are encouraged to resolve the issue of costs. However, if the parties are unable to agree, the mother may file amended submissions on costs within seven days of the release of these reasons and the respondent may do so within 14 days of the release of these reasons. The submissions and shall be limited to three pages double-spaced, with a minimum 12-point font, together with a bill of costs and any offers to settle. If cost submissions are not provided within the time prescribed in these reasons, the issue of costs shall be deemed to be settled by the parties and no order will issue. The parties have the option of filing their costs and prejudgment interest submissions through the JSO portal or to London.courthouse@ontario.ca

[59] I want to thank the parties for the thoughtful and respectful manner in which they presented their respective cases. It is clear they want and are able to cooperate in meeting the best interests of their children. I also want to thank Ms. Reiss for her focused and helpful submissions.

“Justice B. Tobin”
Released: January 6, 2025

Endnotes

[1] Exhibit 5.
[2] $43,460 ÷ ($43,460 + $16,549 = $60,009) = 72%.
[3] Exhibit 10.
[4] Exhibit 9.
[5] Exhibit 7.
[6] Exhibit 6.
[7] See para. 49 $225 + para. 53 $2,264.50 = $2,489.50