Court File and Parties
OTTAWA COURT FILE NO. Series: FC-08-2889-03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Suzy Maria Durofil, Applicant
AND
Bruce John Bayne, Respondent
BEFORE: Mr. Justice Timothy Minnema
COUNSEL: John Summers, for the Applicant Alexander W. Ostheimer-Lebeau, for the Respondent
HEARD: February 13, 2026
Motion to Change #2 by the Respondent dated December 12, 2024. Amended Notice of Motion by the Respondent dated February 5, 2026
Reasons for Decision
1The parties began living together in 1990, married in 1991, separated in 2008, and divorced in 2010. They have three children, Robert (30) and the twins Mathew and Martin (25). The respondent father seeks to retroactively vary the operative child support (“CS”) Final Order (“FO”) from 2010 and rescind arrears; the applicant mother seeks to have his requests dismissed.
The Consent Final Order of March 15, 2010
2The FO in question is that of Justice Lalonde dated March 15, 2010, made on consent when both parties had counsel. The relevant parts are paras. 15 and 17 which read as follows:
Commencing on March 1, 2010, the Respondent shall pay child support of $750.00 per month to the Applicant for the benefit of the children of the marriage, namely, Robert Bayne born June 12, 1995, and Mathew and Martin Bayne born May 1 and May 2, 2000 respectively (the quantum of support includes the Respondent's proportionate share of the children's current special expenses which are summer camps expenses for the twins, go-karting expenses for Robert and the portion of uncovered medical and dental expenses incurred for the children).
The parties shall exchange tax information (Tax Returns and Notices of Assessment) annually on or before May 1, commencing on May 1, 2011. The basic child support as well as the Respondent's monthly contribution towards the children's special expenses shall be adjusted annually on June 1, commencing on June 1, 2011.
3For context, shortly before the settlement that led to the FO the father underwent a formal Earning Capacity Evaluation (“ECE”) dated December 28, 2009. The report identified a number of employment alternatives and salary ranges, and concluded “[g]iven his education, training and experience, this assessor believes that Mr. Bayne is competitively employable in a number of possible fields as listed above”. The average annual salary for those positions ranged from $29,250 to $51,093.75 based on a 50-week year and a 37.5-hour work week.
4It is noted in the ECE the father was working at A&A Point of Sales as of August 2009, but there was no dispute and the parties agreed at this hearing that he was not working at the time the FO was entered into, and that the support amount was based on an imputed income to him of $35,000 per year. The reason for the imputation was unemployment/underemployment.
5The father has provided two letters from his family doctor just recently, in 2025, that need mentioning and require some scrutiny. In the first letter Dr. Nguan of the Rideau Family Health Team indicated that he had been the father’s physician since 2009, so prior to the ECE and FO, and listed a number of his ailments. In the second letter dated December 17, 2025, Dr. Nguan indicated that he had been the father’s physician since 2004, even earlier, and added two new historical diagnoses related to mental health. I will make note of these in going through the chronology, accepting the portions of the doctor’s letter where they qualify as participation expert evidence. I note that Dr. Nguan also purported to give opinion evidence in both letters about the father’s ability to work, which was objected to and will be subject to further comment below.
6According to Dr. Nguan, prior to the completion of the ECE the father had already been diagnosed with hypertension (2008), acute stress reaction (2009), dyslipidemia (2009), and was on antidepressants starting in 2009. However, the ECE noted that the father did not present with any medical condition which should be considered a barrier to gainful employment. Further, despite those health concerns, the father with counsel subsequently agreed to the FO in 2010.
Events after 2010
7In his Affidavit of May 20, 2025, the father indicated that he has tried to find employment from 2016 onwards, and he provided documentation related to 6 applications that he says he made in 7 years from 2014 to 2020. He indicated that he as well made 7 attempts verbally/in-person from 2016 to 2024 with no records, which is also over 7 years, but starting later and ending more recently. While he presented the accounts in a summary fashion, it is important to break them down in the context of his income from his Notices of Assessment (“NOAs”). He suggested that he had other applications and interviews but could not recall the places or dates, and he has set out only what he could recall (I note also that he said he applied at a Canadian Tire, with no documentation or date).
2010
8There is no financial or work-related information for this year other than as noted above (he was not working at the time of the FO).
2011
9The father’s NOA shows $4,935 total income without identifying the source, but it does not appear to be social assistance as it was taxable. The father made no formal applications for employment.
10The father was diagnosed with a case of gout that year.
2012
11The father’s NOA shows a total income of $35,785 which was entirely from RRSP withdrawals, and the evidence discloses no written job applications.
12The father was diagnosed with major depression that year. As noted, he had been on antidepressants since 2009.
2013
13The father’s NOA shows a total of $2,808 employment income, and the evidence discloses no written job applications.
14The father was diagnosed with obesity that year and generalized anxiety.
2014
15The father’s NOA shows a total income of $3,360 from social assistance.
16There is one written employment application (Signature Food Concepts) espousing skills and experience in sales.
17According to the Family Responsibility Office (“FRO”) records, while not always being consistent in his payments and falling behind but catching up at times, the father was up to date with his support obligation up until around February of 2014 when he stopped paying voluntarily. At the time, Robert was 18 and the twins were 13 years old. After that, the only monies collected by the Director of FRO were from diversion. Arrears of CS began to seriously accumulate.
18Reference is made to a Motion to Change (“MTC”) brought by the mother, not the father, in June of 2014 relating to life insurance. It was resolved by way of a Final Order dated June 26, 2014, which has not been uploaded to Case Center. While there are few details, it was confirmed over the bench by both parties that the father was ordered to pay the mother $1,500 in costs related to that proceeding. Notably, there was no mention of a cross-motion at that time by the father to address the child support, which he had just stopped paying.
2015
19The father’s NOA shows $3,960 total income without identifying the source, but it appears to be social assistance as it is identified as non-taxable. The father made no written application for employment.
2016
20The father’s NOA shows $3,960 as “worker’s compensation benefits” and $4,065 as social assistance. The assessment shows the total of the two amounts being $8,025 and that none of it was taxable. The father made no applications for employment.
2017
21The father’s NOA shows $8,796 total income without identifying the source. The father says he made a formal application for employment (Stanley Black & Decker), but he only provided the job posting, not a copy of his application.
2018
22The father’s NOA shows $9,213 from social assistance.
23There is one written employment application to the Hard Rock Casino as a gift shop attendant. The father touted his skills and sales experience and indicated that he would be available “on very short notice, for all shifts: days, nights, weekends and holidays.”
24The father says that he did work for a brief period with the EY Centre as a parking attendant, but was unable to confirm the amount earned, and as noted it does not appear to be reflected in his NOA.
25He further indicates that he earned approximately $1,085 with the Salvation Army kettle fund campaign, but again, that does not appear to be reflected in his NOA.
2019
26The father’s NOA shows $8,792 from social assistance. The father made no written application for employment.
27On November 25, 2019 the father, acting for himself, issued a MTC regarding child support. He sought to terminate CS under the FO for all 3 children as of December 31, 2019, and to pay ongoing CS of $50 per month for the twins commencing January 2, 2020, based on an income of $8,796 (so terminate for Robert and continue paying something nominal for the twins). No mention was made in the MTC of the arrears accumulated to date.
28The mother in her Response to Motion to Change (“RTMTC”) dated December 27, 2019, acting for herself, indicated that she agreed with the information in the MTC except to note that: the father had not paid life insurance of $50/month for 57 months, the CS had been assigned to the Ministry of Community and Social Services, and that as of December 13, 2019 there were $53,849 of CS areas owing according to the FRO records. She agreed there was no more CS owing for Robert as he had finished university.
2020
29Shortly afterwards the parties attended a First Appearance list on January 13, 2020, and then attended mediation that same day. The matter did not settle.
30There were no further steps by the father to pursue his relief until a Case Conference before Justice MacEachern on July 17, 2024, some 4 ½ years later. More on that below. As no further action was taken despite the concession from the mother that there was no longer a support obligation for Robert, the support arrears continued accumulating at $750 per month.
31The father’s NOA for this year shows $8,792 from social assistance.
32The father says he made a formal application for employment at the Salvation Army, but he only provided the job posting, not a copy of his application. Although he did not know the date, in his chronology of purported applications he indicated that also he applied for a position at Tim Horton’s, although again he only provided a partial copy of a job posting for a part-time position and not a copy of his application. The father also said he made a formal application for a position at Farm Boy, but once again he only provided a copy of a job posting and not a copy of his application.
2021
33The father’s NOA shows $8,792 from social assistance. There is no evidence of any employment application.
2022
34The father’s NOA shows $7,811 from employment income, where he says he worked at Lansdowne Stadium at the parking department directing traffic for a few months, plus $5,565 from social assistance for a total of $14,376.
35As can be seen from the FRO records, as of September 30, 2022 the mother must have advised the director that the support obligation for the children had ended. Arrears stopped accumulating, and credit was provided of $11,250, leaving the total arrears at $66,530.17. It needs to be noted that the mother has put all three of the children through university.
36The father was diagnosed with diabetes that year.
2023
37The father’s NOA shows $2,868 from employment, $3,286 from social assistance, and $4,960 from CPP, for a total of $11,114. The source of the employment income is not clear.
38As can be seen from the FRO records, it began enforcing against the father’s CPP benefits as of March 9, 2023, as regular monthly diversion receipts of $225.47 were being taken.
2024
39As noted, there were no further steps by the father to pursue his request for relief until a Case Conference before Justice MacEachern on July 17, 2024. The mother suggests this was prompted by FRO’s enforcement against his CPP pension, the only serious success FRO has had in enforcement since the father brought his MTC about 4 ½ years earlier. Justice MacEachern did a thorough review of what she could learn of the file and noted deficiencies in the filings. Although the father had not filed a Case Conference Brief, he had filed a Confirmation in which he indicated that he now wanted to adjust CS to $50/month as of May 1, 2016, very different than his MTC (he was now seeking adjustments going back 3 ½ more years), with no explanation of the basis for that request. The mother agreed at that time that support should stop for Robert effective December 27, 2019, and for the twins that it should stop as of July 1, 2021, as they had all finished their education. As no one was arguing the quantum of the arrears under the FO, it would appear that these termination dates were already reflected in the adjustment made by FRO to the father’s arrears in 2022 as noted above. Justice MacEachern provided the parties with some legal information, made disclosure orders to complete the records, and ordered costs against the father of $200.
40At some point in 2024 the father suffered a concussion.
41At some point both parties retained counsel.
42The father with counsel prepared a “Fresh as Amended” MTC (which I will refer to as his “MTC2”) dated December 12, 2024, and on May 15, 2025, Justice Audet granted him leave to re-file it. Although paras. 10 and 11 of MTC2 are a bit confusing, essentially the father seeks to terminate CS for Robert as of December 2019 (again the mother had previously agreed to this), and to terminate CS for the twins as of April 2021 when he says they graduated with their first post-secondary degree. Again, adjustments had already been made per the mother’s dates, and although father’s claim was that they terminate several months earlier, he conceded that he had no evidence to support that request. He also requested that arrears be set at $0 as of those termination dates, a full rescission of arrears, and that there be an order that he owes no support from 2016 to present. He said that he made “several attempts” to address the issue of child support with the mother previously and that correspondence was sent “over the years” but acknowledged that he did not have exact dates or copies of any correspondence prior to November 2019 (the date of the MTC). He explained the 4 ½ year delay between the First Appearance date and the Case Conference being as a result of the COVID-19 pandemic (again the mother said he did nothing because he was in effect judgment proof, and only acted after he began collecting CPP which FRO could garnish), and he said that he has been on Ontario Works (social assistance) since 2014-2015. Interestingly, he said nothing in these pleadings of any health reasons for his lack of employment.
43The mother filed a fresh RTMTC (which I will refer to as her “RTMTC2”) dated December 20, 2024, wherein she sought to dismiss the MTC2 on the basis that there has not been a material change in circumstances and for a lack of disclosure. There was no longer a reference to the support obligation having been assigned.
44While the father’s Factum refers to an NOA for 2024 of $9,251, I was unable to find it in the record. He indicated that the sources of income were Ontario Works (social assistance), CPP, and Salvation Army. He indicates that he earned approximately $2,800 with the Salvation Army kettle fund campaign in 2024, but it is unknown whether that was reflected in his NOA.
45The father said he in-person/verbally applied for employment at Walmart that year.
2025 to Present
46It appears the parties might have had a second Case Conference around March of 2025 (I see references to it in Case Center, but no endorsement or order has been uploaded).
47The father obtained a letter from Dr. Nguan on May 14, 2025. Again, I have noted each of the health events referred to in that letter chronologically above, but this letter was exhibited in the father’s Affidavit dated May 20, 2025, which was the first notice the mother had in the materials that the father was relying on health difficulties as a reason he has not obtained sustained employment. Despite not being raised before, there was no mention of any new health event in 2025.
48Dr. Nguan opined that “[o]ver the years” the father had difficulty complying with medication recommendations “due to lack of funds”, but that more recently had been able to obtain medication funding and has been compliant. He also said the father was referred to psychotherapy and counselling which was performed within his practice (by the Rideau Family Health Team) but did not say when that was. He concluded:
Over time, his conditions have worsened. Some of this is due to age, but also other social determinants of health including financial and social stressors.
In my medical opinion, he is at this time unable to perform any sustained physical labour or maintain adequate concentration to perform meaningful full time work. He has been substantially unable to work even part-time since Summer 2022.
49It needs to be noted that Dr. Nguan’s last statement is not correct. The NOAs confirm that the father did have part-time work in 2022, 2023, and 2024. It also begs the question, if he was unable to work since the summer of 2022, was he able to work prior to that?
50The father then obtained a follow-up letter from Dr. Nguan dated December 17, 2025. I’ve noted above the discrepancy between the two letters as to when the father became his patient (2009 versus 2004). Again, I have noted each of the health events referred to in that letter chronologically above. In addition to the previous letter, a new diagnosis was added, namely “Dysthymia (ongoing)”. Dr. Nguan elaborated somewhat on the father’s “variable course” of treatment. He spoke about the father being on antidepressants first in 2009 as noted, but having to stop in 2011 “due to cost”. He indicated that the father “could not afford” therapy in 2013 and 2014. He concluded:
In my professional opinion, his diagnoses have limited Mr Bayne’s ability to perform sustained physical labour or maintain prolonged concentration.
With his mental health struggles dating back to 2009, his implicit ability to perform meaningful work has been affected since then. The impact is ongoing. Even with adequate support he will have a challenging but not impossible time to find and retain meaningful full time work. His poorly controlled diabetes could also affect his energy and concentration.
51It needs to be noted that despite the doctor opining that the father’s ability to perform meaningful work has been affected by his health back to 2009, that is contrary to the ECE and the father agreeing to have income imputed to him later, in 2010. Further, the wording of the letter is quite ambiguous, suggesting his “implicit” ability to perform “meaningful” work (as opposed to full-time or part-time work) has been “affected” since 2009, while also suggesting that the father finding “meaningful” full-time work even now would not be impossible, just challenging.
52The mother takes issue with the court accepting the doctor’s opinions about the father’s ability to work. I agree that is problematic: there is no evidence of the doctor’s expertise in that area, and his comments are ambiguous. While exceptions are made for medical opinions on temporary motions and Summary Judgment Motions, the evidentiary requirements are not relaxed simply because the parties agreed to conduct the hearing on affidavit rather than oral evidence. The doctor’s opinions do not meet the requirement for litigation expert evidence. There is no list of qualifications, no Acknowledgement Form, and no affidavit that he could be cross-examined on.
53It appears at some point the father brought a motion that was amended, and the amended motion is the one before me dated February 5, 2026. In it he seeks the exact relief sought in his MTC2, namely rescinding all the arrears of CS, or, in the alternative, a finding that he owes no support from 2016 forward. In the latter case, he also seeks a full or partial stay of enforcement. I note that in his materials he says that he picked the 2016 date as being 3 years prior to giving ‘formal notice’ accepting that his materials fall short of meeting the test of proving prior ‘effective notice’. I will return to that test below.
54The father also sought in the amended motion to rescind the $1,500 cost order against him from the previous Motion to Change regarding life insurance payments. That cost order was not in the materials filed, and it was only explained to me over the bench that it was from the mother’s MTC in 2014 that I have noted above related to life insurance. The request for this relief was not in the MTC2 (it was not pled), and there was little to no supporting evidence with respect to it. I pointed out that I was not provided with the authority being relied on allowing me to rescind another judge’s cost order from a previous proceeding. Without addressing that legal question, in response and in light of the other shortcomings, the father agreed that we would not be dealing with that claim in this hearing, effectively withdrawing that request.
55Both parties confirmed and agreed that the net effect of the amended Notice of Motion and the MTC2 was that what is before me is the final hearing of the Fresh as Amended Motion to Change (MTC2) on affidavit evidence.
The Father’s Ongoing Income
56As noted, the father’s income since 2023 has included his CPP payments, plus social assistance (Ontario Works or “OW”), plus sometimes a level of employment income, whether or not declared. He receives $595 per month from OW, and $483.02 per month from CPP.
57He indicates that with OW being an assistance program of last resort, it deducts the full amount of his CPP, which in theory would still leave him with the equivalent of the $595 per month from OW ($483.02 from CPP plus $111.98 from OW). However, as noted, FRO has been garnishing his CPP payments at 50 percent, which he says leaves him with a total net monthly income of the $111.98 from OW plus half of his CPP of $244.16, for a total of $356.14. He explains that his brother Robert Bayne has been providing him with assistance of about $15,000 in total from May of 2023 to January of 2023, an average of about $460 per month, and had been assisting him with periodic payments even before that, since 2018. The brother provided an affidavit confirming the same, plus repeating some of the medical summary from Dr. Nguan and suggesting that the father was still working in 2010 (which was not what the parties indicated) but has since then “been unable to find consistent or meaningful employment despite ongoing efforts.”
58The father’s father and brother note that since 2018 the father has lived in subsidized housing costing him $171 per month, and that since 2023 when his CPP pension began, his net income after FRO enforcement (being $356.16 as noted above) means that the father only has $185.14 per month to live on, or approximately $6 per day, prior to the brother’s contributions.
Analysis
Law
59Child support variation in this case is governed by the Divorce Act, R.S.C. 1985, c. 3. Pursuant to subsections 17(1)(a), (4), and (6.1), if I am satisfied that there has been a change of circumstances within the meaning of section 14 of the Federal Child Support Guidelines, SOR/97-175, I am to make a variation order in accordance with those Guidelines. As the child support order in this case was determined in accordance with the tables, per Guidelines section 14(a) a change of circumstances is any change in circumstances that would result in a different child support order or any provision thereof. Where a support payor is seeking to retroactively vary or terminate a child support order under the Divorce Act, the leading case is the Supreme Court of Canada decision of Colucci v. Colucci, 2021 SCC 24. Justice Martin in Colucci summarized the proper analysis for retroactive decreases at paragraph 113 and set out the test for rescission of arrears starting at paragraph 133.
Issues
60In light of the above, the issues are (1) has there been a material change in circumstances, and if so, (2) what should either be the new amount of arrears or should the arrears be rescinded in full or in part.
Change in Circumstances
61As noted, the applicant must meet the threshold of establishing a past material change in circumstances. It has to be a real change and not one of choice (Colucci para. 113 (1)). As noted in Trang v. Trang, 2013 ONSC 1980 at para. 46, the comprehensive analysis on a MTC such as this requires considering why income had to be imputed in the first place and whether those circumstances have changed.
62As an aside, the mother relies on the following passage from Colucci at paragraph 63: “a payor whose income was originally imputed because of an initial lack of disclosure cannot later claim that a change in circumstances occurs when he or she subsequently produces proper documentation showing that the imputation was higher than the table amount for their actual income.” However, the original imputation in this case was not based on lack of disclosure, but rather on unemployment/underemployment.
63According to the father per his MTC2, he worked full-time for about 3 years (Giant Tiger and A&A Point of Sales) before the FO. He had already been diagnosed with a number of health issues, but the ECE determined that he was capable of working. Notwithstanding those health issues and that he was unemployed at the time of the FO, he agreed to an imputed income to him of $35,000 a year.
64He never worked full-time again.
65If I accepted, even without supporting documentation in most instances, every time the father said he applied for employment, and if I included in that number the assumption that the few part-time positions he says he had throughout were all preceded by an application, the father would have only made by my calculation a total 8 employment applications from 2010 to 2024. He said he also made some other overtures that he could not remember, and, although that is suspect, if I gave him the full benefit of the doubt and rounded up generously, the total would still not be more than 14.
66That is simply not good enough.
67The mother’s counsel made a very cogent argument, namely that when you are unemployed, you actually do have a full-time job, which is to go out and find a full-time job. Making on average roughly one employment application a year since the FO is strongly indicative of a choice not to work. This is more so where, as here, the type of job required to match the imputed income needed to be little more than an entry level unskilled position, given that over time the imputed amount began to increasingly reflect a minimum wage income.
68Can the medical evidence, such as it is, account for the lack of employment and, more importantly, the lack of effort to obtain employment?
69It needs to be noted first that the mother has conceded very specific but limited material changes in circumstances: that Robert aged out of his support entitlement in December of 2019 (after completing university) and the same happened with the twins in July of 2021. This has been reflected in the FRO accounting by way of an adjustment as noted, and again there was no evidence to dispute those numbers or that disposition.
70Dr. Nguan’s first letter in May of 2025 indicated that in his opinion “at this time” the father cannot perform “meaningful” full-time work. Leaving aside for a moment questions of the doctor’s expertise to give such an opinion and what kind of jobs would be considered by him to be meaningful (again in 2025 a minimum wage entry level unskilled position would have earned the father roughly the same income as originally imputed), this letter arrived well after the acknowledged ending of the support obligation. Dr. Nguan went on to opine that the father has been “substantially” unable to work even part-time since the summer of 2022. This is likewise a full year after the support obligation ended, and the father has actually had some part-time work since then. In his second letter in 2025, Dr. Nguan, as noted spoke about the ‘impact’ of the father’s health in performing “meaningful work” since 2009, but what that impact would have been is not clear, and is contraindicated by the ECE and in part by employment since then. He opined that the father “will have a challenging but not impossible time to find and retain meaningful full-time work” at present. Again, this is very vague, and even if it was a proper litigation expert opinion, it does not establish a material change in circumstances prior to 2021; rather it suggests that it is not impossible for the father to find full-time work even now, let alone part-time work.
71Added to the noted shortfalls, any weight that could be given to the medical evidence is further weaken by the fact that it was not mentioned in the first MTC nor the amended MTC2, but only in the material filed for this motion/hearing. Furthermore, there is no evidence that the father, despite claiming now that he had a medical inability to work, has ever made an application to receive either CPP disability benefits or ODSP benefits, as would be expected given that he was under the very regular care of a physician throughout.
72What the father essentially wants me to do is find that his medical evidence, which nowhere rules out employment capability before the support obligation ended, establishes that that there was no essentially minimum wage job available for him in over 14 years. I am unable to do so. The evidence does not establish that he was unable to work, or that there were adequate efforts to find work in the face of an imputed income. As such I am unable to find a material change in circumstances prior to the children aging out, and the support reduction triggered by their aging out has already been accounted for.
73It needs to be noted that the father here relied heavily on the test for a recession based on a current and future inability to pay support as discussed in Colucci again starting at para. 133. As noted in para. 135, for such a claim the payor’s ongoing financial capacity is the only relevant factor (para. 135) and the discretion to grant this relief is narrow (para. 136), namely where the payor has established that they cannot and will not ever be able to pay the arrears (para. 138). Before granting such relief, creative payment plans, and temporary suspensions, should first be looked at (paras. 138 and 140). However, in Colucci the rescission was being considered in the context of a Divorce Act section 17 application (para. 139) namely a change to the previous order. As noted, per section 17(4), the court has no jurisdiction to vary the previous order without first finding a material change in circumstances. In Colucci such a change was found (para. 117) making rescission a live issue (but ultimately refused), but as noted I have not found a material change here, raising the question of whether that relief is even available. If it were available, in addition to the test set out above, I note that rescission is described as stringent, one last resort for exceptional cases, and the only example provided in Colucci is where a payor suffers a catastrophic injury (para. 141). The father does not meet that test. Further, as will be touched on below, I am not convinced that the father will not ever be able to address the arrears.
Considerations Had a Material Change in Circumstances Been Found
74While the above finding ends the inquiry regarding a retroactive variation or rescission of the father’s child support obligation, even had a material change in circumstances had been found, the father would still have problems obtaining the relief he sought.
75First, as to notice per the test, he has conceded that there was no effective notice given and rightly so; his explanation of being unable to even give notice because of health reasons is not supported by the evidence. Indeed, para. 7 of the FO requiring yearly financial disclosure was ignored throughout. The first notice of any kind was the father’s MTC in 2019. Even then, he was not seeking in it a retroactive variation but only seeking to terminate the support for Robert (which the mother conceded) and to reduce the ongoing obligation for the twins. It was not until his amendments reflected in his MTC2 in 2025 that he sought retroactive variation and rescission.
76The father suggested that the 2019 originating process was his formal notice, such that the retroactivity should then go back to 2016 based on the 3-year rule. That is a misunderstanding of Colucci. The rule only limits the period of retroactivity had there been effective notice followed by a delay in giving formal notice (paras. 91 to 94, and para. 113(2)). Again, it is conceded by the father that there was no effective notice in this case.
77Indeed, even if formal notice was 2019, there was an admitted lack of disclosure in this case, both financial and medical, until 2025 and 2026, well after the ongoing support obligation had already ended. In those situations, child support is not varied back to the date of formal notice but to the later date when full disclosure is actually made (Colucci at paras. 95 and 113(3)).
78The court has discretion to depart from the presumptive rules of retroactivity where the result would be unfair. In my view there was no understandable reason for the father to delay seeking a decrease. Even in 2014, when the mother brought a MTC regarding insurance, he did not address it. A timely request for a reduction (or rescission) would have allowed the issues to be tested contemporaneously in real time; not raising it until after the support obligation ended was unreasonable. Had it been made in real time, the mother would have had the opportunity to re-assert imputation and question the medical evidence, if there was any, by asking why the father has never applied for disability benefits. His failure to make disclosure on an ongoing basis is improper conduct. In support of the above finding that there has not been a material change in circumstances, but also to this point, it was noted in L.M.P. v. L.S., 2011 SCC 64 (although in the context of spousal support) at para. 35 that the subsequent conduct of the parties may provide indications as to whether they themselves considered a particular change to be material.
79The fact that the children have done well, thanks to the mother, and the fact that her financial circumstances are more favourable than the father’s, are indeed factors for the court to consider and in the father’s favour. However, weighed against the delay and conduct, those factors would not be sufficient to convince me to exercise my discretion to depart from the presumptive date of retroactivity.
80Had a material change in circumstances been found, I also would not have granted rescission for the following reasons. The arrears accumulated because the father chose not to work. Having considered the underwhelming medical evidence, little in his life has changed. After no or limited enforcement opportunities since 2014, finally with his CPP benefits being garnished, some money is now trickling in. The father is only 63 years old. There remains a possibility of windfalls, gifts or inheritances, that could be subject to FRO enforcement. This is not a catastrophic injury case, and the evidence does not establish that the father could never earn any income. Indeed, by his own admission he worked as late as in 2024. He is no longer judgment proof given his CPP benefits and may still have many years remaining to chip away at this debt that he allowed to accumulate.
Decision
81The father’s Motion to Change before the court (as amended) is dismissed.
82I observe that, notwithstanding this disposition, there is always room for some negotiated resolution. The father could explore whether a reduced lump sum payout possibly bankrolled by his family would be of interest to the mother, in effect ending FRO enforcement by moving the remaining debt from her/FRO to one or more family members. I will leave that with the parties.
83The mother has sought costs. The parties are requested to negotiate and resolve that issue, failing which they shall ask the Trial Coordinator for a one-hour cost hearing, that can, if necessary, take place by Zoom. If that request is not made within 15 days, the matter shall be deemed to be settled.
Minnema J.
Date: April 27, 2026