Court File and Parties
Citation: Delgado v. Bonas, 2026 ONSC 3686 Court File No.: FS-11-10891-01 Date: 2026-06-24
Ontario Superior Court of Justice
Between: Carlos Alberto Delgado, Applicant – and – Andrea Danielle Bonas, Respondent
Counsel: Aileen Manalang, for the Applicant Cheryl Hodgkin, for the Respondent
Heard: February 10, June 1 and 5, 2026
Reasons for Judgment
1The respondent mother seeks to set aside the child support provisions in the final order of Nolan J. dated May 13, 2014 (the “Final Order”) and obtain orders for retroactive and ongoing child support pursuant to her Motion to Change filed December 20, 2024. Because the applicant father did not file an Answer, this matter proceeded as an uncontested trial.
2The first day of trial was held on February 10, 2026. Additional information and legal submissions were needed, and the trial was adjourned to June 1, 2026. Following a half-day of trial, the matter was again adjourned briefly so that the mother’s counsel could prepare revised calculations based on errors in the initial record. The trial concluded on June 5, 2026.
3The basis of the mother’s claim for retroactive and ongoing child support is the failure of the father to provide her with accurate, ongoing financial disclosure. Although he has consistently paid child support in accordance with the Final Order, the father has earned significantly more income than represented to the mother. The trial was focused on the calculation of his true income for all years since 2014.
4The mother alleges that the father engaged in a fraudulent scheme to misrepresent his income for over a decade. His 2014 child support was based on an income of $35,000. He did not promptly provide notices of assessment between 2015 to 2018. He later provided notices of assessment for the years 2016 to 2022 (with the exception of 2017), all of which showed income of less than $40,000 a year. Each of the notices of assessment produced had a redacted social insurance number.
5The mother became suspicious of the father’s disclosure. In 2024, she brought the Motion to Change. She then obtained, from the father’s counsel, several notices of reassessment for 2015 to 2023. These documents reveal that the father in fact earned more than $70,000 every year since 2015. The notices of reassessment were not given to the mother prior to this litigation.
6But even the notices of reassessment do not tell the whole story. The father revealed in his financial statement dated February 12, 2025, that he earns rental income. No rental income, however, is reflected in his tax returns. As a result, the court was asked to impute income for all years from 2014 to the present.
7In addition to retroactive support based on the father’s true income, the mother also seeks general damages for fraudulent misrepresentation. In the alternative, she advances a new tort – child support fraud. She submits that none of the existing torts adequately capture the nature of the egregious conduct of the father to deprive his children of the child support owed to them, and the impact of years of inadequate child support on the mother. Among other arguments, the mother submits that she robbed herself of resources to ensure that her children were adequately supported financially. The father’s prolonged deception also caused her to delay bringing the Motion to Change.
I. The Evidence
8The following factual findings are based on the mother’s affidavits sworn December 20, 2024, and January 28, 2026, as well as on the mother’s testimony at trial and the trial exhibits.
9The parties married in 2007 and separated in March 2011. They have twin children, A.D. and N.D., born in 2008.
10The father commenced divorce proceedings in 2011. Both parties were represented by counsel. They ultimately resolved the proceedings by Minutes of Settlement on October 7, 2013, and the Final Order of Nolan J. dated May 13, 2014.
11At para. 5 of the Minutes of Settlement, the father represented that he was employed at ProResp with a projected income of $38,000. Pursuant to the Final Order, the children would reside primarily with the mother, and the father would pay child support of $508 monthly starting on January 1, 2014, based on a projected annual income of $35,000. The father was also required to contribute $59 a month in s. 7 expenses.
12Importantly, para. 20 of the Final Order compelled the father to provide updated income disclosure each year, within 30 days of the anniversary of the Order.
13Evidence of text messages establishes that the mother consistently requested financial disclosure beginning in 2015. The father ignored her requests from 2015 to 2018. Eventually, the father produced notices of assessment for almost all years, but no tax returns.
14The social insurance numbers on each of the notices of assessment provided to the mother were redacted. The mother states that the applicant’s father has the same first and last name. The mother became concerned that the notices were those of her former father-in-law.
15In 2023, the mother discovered the father’s LinkedIN profile. It showed that the father was not working at ProResp, and in fact, since shortly after the time of separation, had been the territory manager for Canada Steel Service Centre. The LinkedIN profile reflected a career progression that did not match the income reported in the notices of assessment.
16In 2024, the mother retained counsel who delivered several demands to the father requesting disclosure compliance. The father did not respond. The mother commenced the Motion to Change in December 2024.
17In her original Motion to Change, the mother sought retroactive child support to 2015 and extensive financial disclosure.
18The father retained counsel and produced a financial statement and several notices of reassessment in February 2025. He did not file an Answer.
19The disclosure provided by the father revealed that he had significantly higher income in 2021, 2022 and 2023 than reflected in his notices of assessment. After further demands by the mother’s counsel, the father’s lawyer produced additional notices of reassessment.
20The disclosure confirms that in each year following the Final Order, the father filed tax returns and obtained notices of assessment. He provided most of these notices of assessment to the mother. He would then file an amended tax return and obtain a notice of reassessment each year, usually in December. He did not provide the mother any of these notices of reassessment.
21This pattern of filing amended tax returns each year and not disclosing notices of reassessment continued over the course of a decade.
22The notices of assessment and reassessment reveal the following income:
| Year | Notice of Assessment | Notice of Reassessment |
|---|---|---|
| 2015 | Not provided | $82,481 |
| 2016 | $35,120 | $70,240 |
| 2017 | Not provided | $98,537 |
| 2018 | $38,654 | $87,655 |
| 2019 | $36,441 | $78,296 |
| 2020 | $34,478 | $90,716 |
| 2021 | $38,239 | $82,216 |
| 2022 | $39,486 | $89,468 |
| 2023 | $37,211 | $99,958 |
| 2024 | Not provided | $96,048 |
23The father’s financial statement sworn February 12, 2025, also disclosed rental income from properties in LaSalle and Leamington that did not appear in his notices of reassessment.
24As a result of the disclosure, the mother served and filed an amended Motion to Change, which was served on the father on October 10, 2025. In addition to retroactive child support to March 2011, the mother sought to set aside the release of spousal support and the property settlement provisions in the Final Order. She claimed $250,000 in punitive damages for “wilful fraudulent misrepresentations”.
25The father and his counsel have not responded to the amended Motion to Change.
26In light of the father’s default, the mother proceeded to an uncontested trial.
27On the first day of trial, the mother’s lawyer submitted that the spousal support waiver in the Final Order should be set aside and that lump sum spousal support of $100,000 should be awarded. I required further submissions regarding the basis for setting aside the waiver and the availability of both general damages and lump sum spousal support.
28On the second day of trial, Ms. Hodgkin advised that her client was not pursuing the spousal support claim because of the high threshold for setting aside a separation agreement under Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303. However, she was withdrawing that claim on a without prejudice basis pending determination of the damage claim.
29Ms. Hodgkin also clarified that the mother was seeking child support retroactive to 2015, not 2011 as set out in the amended Motion to Change.
II. The Issues and Analysis
30The Motion to Change raises the following issues:
a. Was there a material change in the father’s income after the Final Order was made?
b. What amount of retroactive child support is the father obligated to pay?
c. What is the father’s ongoing child support payment?
d. What are the s. 7 expense arrears?
e. Is the father liable to pay general damages for fraudulent misrepresentation, and if so, how much?
f. Should the court recognize the tort of “child support fraud”?
a. Material Change in the Father’s Income
31An applicant seeking a retroactive variation of a support order under s. 17 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), must first show a past change in circumstances, as required under s. 17(4). Section 14 of the Child Support Guidelines lists situations constituting a change in circumstances for the purpose of s. 17(4), including any change “that would result in a different child support order or any provision thereof”: Child Support Guidelines, s. 17(4)(a).
32The payor parent has a free-standing legal obligation — independent of any court order — to pay child support commensurate with income: D.B.S. v. S.R.G, 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 48.
33The court may impute such amount of income to a spouse as it considers appropriate in the circumstances: Katarzynski v. Katarzynski, 2012 ONCJ 294, at para. 69; Child Support Guidelines, s. 19(1).
34The right to impute income is not an invitation to the court to select an imputed amount arbitrarily. The selection of an income must be grounded in the evidence. The court must decide what amount is reasonable in the circumstances: Katarzynski, at paras. 108-109.
35There is no question that the father under-reported his income to the mother for over a decade. He provided only partial notices of assessment. He withheld his notices of reassessment until February 2025. The notices of reassessment confirm that the father’s income was more than twice what was revealed in the notices of assessment. The notices of reassessment alone constitute a material change in the father’s income since the date of the Final Order.
36However, even the notices of reassessment are not accurate accounts of the father’s income. In his February 12, 2025, financial statement, he reported that he generates the following rental income from two properties, before expenses:
425 Merrill Avenue, LaSalle: $2,500 monthly
54 Andfred Street, Leamington: $2,000 monthly
37According to title searches filed at trial, the father has owned the LaSalle property since 2016, and the Leamington property since 2018.
38The only income reflected in the father’s notices of reassessment is T4 income. Consequently, his income for child support purposes must be grossed up for untaxed rental income.
39In an attempt to be as accurate as possible, I directed that the gross rental income be reduced to account for property tax, property insurance, and repairs and maintenance, in the amounts noted in the financial statement. No deduction was allowed for mortgage payments since only the interest would be deductible, and the father did not disclose what amount of interest was paid.
40At the court’s request, counsel prepared revised income calculations to reflect the rental income net of expenses, as follows:
| Property | Gross annual rental income | Monthly expenses | Annual expenses | Net annual rental income |
|---|---|---|---|---|
| 425 Merrill Ave. | $30,000 | Property tax: $270.59 Insurance: $143.86 Repairs: $120.00 |
$,6407.40 | $23,592.60 |
| 52 Andfred St. | $24,000 | Property tax: $394.46 Insurance: $110.28 Repairs: $175.00 |
$8,156.88 | $15,843.12 |
41For the years 2016 and 2017, therefore, the father’s income must be adjusted for net rental income derived from the Merrill Avenue property alone ($23,592.60), and for subsequent years, his income must be adjusted for net rental income from both properties, totalling $39,435.72. These calculations are based on his February 2025 financial statement; it is not known if the rent charged prior to 2025 was lower than reported in the financial statement. Because the father did not fully disclose his rental income, either in these proceedings or in his tax returns, I am not prepared to draw an inference in his favour. I will impute additional income in each year from 2016 to the present by the net rental income described in the preceding chart, grossed up to account for the income not being taxed in his hands.
42Ms. Hodgkin provided DivorceMate calculations (trial exhibit 4) that automatically grossed up the rental income. Thus, the father’s total income, which includes the imputed rental income and his T4 income as reflected in his notices of reassessment, is as follows:
| Year | Total Income |
|---|---|
| 2015 | $82,481 |
| 2016 | 108,275 |
| 2017 | 140,228 |
| 2018 | 157,482 |
| 2019 | 144,855 |
| 2020 | 160,332 |
| 2021 | 149,088 |
| 2022 | 157,568 |
| 2023 | 169,299 |
| 2024 | 163,200 |
| 2025 | 166,897 |
43Because the 2025 notice of assessment was not available at trial, the father’s 2025 employment income was calculated using the monthly employment income of $8,300 reported in his financial statement.
b. Retroactive Child Support
44In Colucci v. Colucci, 2021 SCC 24, [2021] 2 S.C.R. 3, the Supreme Court set out the framework to apply where a parent seeks to increase child support on a retroactive basis.
45By reference to the factors listed at para. 114 of Colucci, I find as follows:
a. The mother has met the threshold of establishing a past material change in circumstances, for the reasons discussed in the preceding part.
b. Because the threshold has been met, the mother is presumptively entitled to a retroactive increase to the date she gave the father effective notice of the request for an increase, up to three years before formal notice of the Motion to Change. I find that she repeatedly broached the topic of child support, and specifically asked for the father’s income disclosure, as early as June of 2016, according to text messages entered as exhibits at trial. Effective notice was given no later than June 2016.
c. Formal notice was given when the Motion to Change was filed in December 2024. The mother, therefore, is presumptively entitled to a retroactive increase from December 2021.
d. The court retains a discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. If the payor has failed to disclose a material increase in income, the date of retroactivity will generally be the date of the increase in income. That is the case here. The father failed to disclose the increases in his income in 2015 onward.
46A retroactive order going back 11 years is significant, but not unprecedented. It is the same length of time ordered in Michel v. Graydon, 2020 SCC 24, [2020] 2 S.C.R. 763, and shorter than the 22-year retroactive order in Jansen v. DiCecco, 2025 ONCJ 189.
47There are no factors that weigh against ordering retroactive child support adjustments in the case before me. The father wilfully hid his true income from the mother and by doing so, did not pay the child support to which his children were entitled. I agree with Sherr J. that “[t]he exercise of judicial discretion must encourage financial disclosure and in no way reward those who improperly withhold, hide or misrepresent information that they ought to have shared”: Jansen, at para. 54.
48The mother’s delay in bringing the Motion to Change is reasonable. She asked for the father’s income disclosure every year, and after some resistance, the father produced notices of assessment. Her lack of knowledge about the magnitude of his increased income explains the delay: Jansen, at para. 77.
49As a result of the failure of the father to comply with his disclosure obligations, the date of retroactivity shall be January 1, 2015, which aligns with the date of the material increase in income.
50The final step in the Colucci analysis is to quantify the support payable every year from the start date support is changed: Colucci, at para. 114(e).
51The father’s income for child support purposes is set out in para. 42, above. To determine the shortfall, I must calculate the support the father ought to have paid under the Guidelines and deduct the amounts he actually paid.
52There is a discrepancy in the evidence filed by the mother, however, regarding the amount of child support paid by the father. Although the Final Order provides that monthly child support of $508 was to be paid based on his reported 2014 income, the mother states in her affidavit sworn December 20, 2024 (at para. 32) that the Family Responsibility Office was collecting $567/month. She further testified that the father was giving her an additional $640 a month starting June 2024.
53The calculations provided on the last day of trial (exhibit 4), however, assume that the father paid $508 a month from 2015 to date and do not appear to account for the additional $640 monthly payments. This discrepancy did not come to light until after the trial concluded.
54Based on the calculations led at trial, the shortfall in child support payments from January 1, 2015 to December 31, 2025 totals $189,056. I require clarification from counsel as to the amount of monthly child support that was paid ($508 or $567), over what period of time, and confirmation that a credit of $640 a month starting June 2024 was included. Revised calculations will be prepared accordingly.
c. Ongoing Child Support
55The father’s 2025 income is imputed to be $166,897, comprised of estimated employment income (using figures in his February 2025 financial statement) of $99,600, plus imputed rental income of $39,436, grossed up because it was not taxed.
56The Guideline support for two children based on this income is $2,341 a month and shall be payable commencing January 1, 2026.
57Although A.D. is graduating from high school this month, she has been accepted at the University of Windsor this fall and will continue living at home. Thus, s. 3 Guideline support will be paid for both children while A.D. is enrolled in full-time studies and until she completes her first degree.
58It is too early to know where N.D. will be studying after high school. If he attends outside of Windsor, s. 3 support may need to be adjusted using the summer model.
d. Section 7 Expenses
59At the time the Final Order was entered, the mother’s income exceeded the father’s (under-reported) income. The only s. 7 expense was the children’s daycare costs. The Order provided that the father’s proportionate share of s. 7 expenses was $59 a month. He consistently paid this amount.
60Not unexpectedly, the children’s s. 7 expenses increased as they grew older. Both children required braces, N.D. had expenses related to his learning disability, and A.D. had expenses related to her club foot. Both children were involved in extracurriculars. Due to the passage of time, the mother did not have receipts for any expenses other than the children’s orthodontic treatment.
61The mother testified at trial to address some of the gaps in the affidavit evidence but provided no details of the extracurricular expenses or medical costs, other than the children’s orthodontic treatment. The absence of even testimonial evidence to substantiate these expenses leaves me with no evidentiary foundation on which to make an order regarding these expenses.
62In the course of the mother’s testimony, information emerged that her father provided after-school care for the children until they were in grade 2. I am not prepared to recognize the grandfather’s care as a s. 7 expense. Once the children were in a latchkey program, however, the father is required to share the s. 7 expense. The mother’s estimate of $375 a month or $4,500 annually for latchkey from 2015 to 2018 is reasonable.
63The father’s proportionate share of s. 7 expenses is calculated as follows:
| Year | Mother’s Income | Father’s Income | Father’s Share |
|---|---|---|---|
| 2015 | $58,917 | $82,481 | 58.3% |
| 2016 | 54,453 | 108,275 | 66.5% |
| 2017 | 58,305 | 140,228 | 70.6% |
| 2018 | 57,947 | 157,482 | 73.1% |
| 2019 | 59,391 | 144,855 | 70.9% |
| 2020 | 51,613 | 160,332 | 75.6% |
| 2021 | 63,303 | 149,088 | 70.2% |
| 2022 | 67,592 | 157,568 | 70% |
| 2023 | 76,629 | 169,299 | 68.8% |
| 2024 | 79,326 | 163,200 | 67.3% |
| 2025 | 79,326 | 166,897 | 67.8% |
64The father’s proportionate share of latchkey, therefore, is as follows:
| Year | Share | Amount |
|---|---|---|
| 2015 | 58.3% | $2,623.50 |
| 2016 | 66.5% | $2,993.00 |
| 2017 | 70.6% | $3,177.00 |
| 2018 | 73.1% | $3,289.50 |
| Total | $12,083.00 |
65The orthodontic receipts are adequate proof of the amounts incurred by the mother for A.D. ($3,920) and N.D. ($3,720). Based on the parties’ proportionate income in 2023, the father’s share is 68.8% or $5,256.32 ($2,696.96 + $2,559.36).
66The latchkey ($12,083.00) and orthodontic ($5,256.32) expenses total $17,339.32. They are legitimate s. 7 expenses. Given the absence of evidence regarding medical expenses and extra-curriculars, I am not allocating any amounts to the father for these items. The father’s s. 7 expenses arrears from 2015 to 2025 are fixed in the amount of $17,339.32. The father’s monthly payments of $59 for s. 7 expenses required under the Final Order must be deducted from this sum.
67The mother also requests that the father pay 67.8% of the children’s 2026 s. 7 expenses. His share is broken down as follows:
$5,680 toward the purchase of N.D.’s car
$1,405 on account of N.D.’s travel expenses for his high school co-op placement between February and June 2026
$1,029.50 a month for A.D.’s tuition, supplies and car insurance
$134 a month for A.D.’s car insurance from January to April 2026
$710 toward the purchase of a laptop for A.D.’s use in university
68In her oral testimony, the mother elaborated that the total cost of N.D.’ car was $8,000 and that he contributed $2,000 toward it. Applying the father’s proportionate share to the remainder of $6,000, the father’s contribution shall be $4,068.
69No details were provided for N.D.’s travel expenses. I do not have any information about his part-time work or ability to contribute to gas expenses. Based on the lack of evidence, I deny the $1,405 claimed in travel expenses.
70The mother is asking that the total estimated cost of A.D.’s tuition, supplies and car insurance be fixed and payable in the monthly amount of $1,029.50. Although the mother was able to show that A.D. had been accepted into university, A.D. had not yet accepted the offer, and there was no evidence of the actual costs to be incurred. Whether she can contribute toward her school expenses from summer wages, or if she has grants or scholarships is also unknown. Several factors need to be weighed before a court can make the appropriate order regarding the adult children’s ongoing support: Aubert v. Cipriani, 2015 ONSC 6103, at para. 41.
71At this stage, I am not prepared to fix the amount of the father’s share of A.D.’s s. 7 education expenses or in contributing towards a laptop. This order is without prejudice to the rights of the mother to seek a further order for child support in relation to A.D.’s post-secondary education expenses.
72In conclusion, at this time the father shall pay $17,339.32 in back s. 7 expenses and $4,068 towards N.D.’s car costs. He shall be credited for the $59 monthly s. 7 contributions made under the Final Order.
e. Damages for Fraudulent Misrepresentation
73The mother seeks general and punitive damages on the basis of the father’s allegedly fraudulent misrepresentation. While Ms. Hodgkin spent considerable time arguing from basic tort principles, she did not cite any case in which an order for such damages was made against a payor parent.
74The following elements constitute the tort of fraudulent misrepresentation:
a. The defendant made a false representation of fact.
b. The defendant knew the statement was false or was reckless as to its truth.
c. The defendant made the representation with the intention that it would be acted upon by the plaintiff.
d. The plaintiff relied upon the statement.
e. The plaintiff suffered damages as a result. See e.g.; 1000425140 Ontario Inc. v. 1000176653 Ontario Inc., 2024 ONCA 610, 500 D.L.R. (4th) 639, at para. 24.
75The mother argues that all five elements of fraudulent misrepresentation are met: the father knowingly misrepresented his income year after year, intending the mother to forebear seeking increased child support. She relied on his statements and suffered damage as a result.
76I am prepared to accept that the father knowingly misrepresented his income. There is no other reasonable explanation for his pattern of producing notices of assessment and failing to produce notices of reassessment. His obligation to provide accurate disclosure of his income arises both under the Final Order and as a matter of law: D.B.S., at para. 48.
77The mother states that she relied on the misrepresented income to her detriment. When pressed to explain “detriment”, she testified that she delayed in seeking greater support, and that she “robbed” herself of resources to ensure the children’s needs were met. In her pleadings and at trial, the mother stated that she struggled financially from 2012 to 2017, when she worked full-time and went to university part-time to secure a better paying job. She also testified that her career advancement was stunted because she was caring for the children and could not afford professional clothing to be competitive for promotions.
78I do not find that the mother meets the final element of the tort. The evidence does not establish that she suffered an injury connected to the inadequate child support. For example, there is insufficient evidence to bridge the causation gap between her claim that she did not apply for or get career promotions and her inability to buy professional clothing due to a lack of adequate child support. Similarly, her claim that she delayed in buying a home is complicated by the fact that she remarried in 2015 and her mother gave them a loan for a downpayment.
79More problematic is the legal premise of the mother’s damages argument. She claims compensation for the harm she suffered by having to pay more for the children’s needs than she ought to have paid. It is a central tenet of child support, however, that the support is the right of the child, not the recipient parent. Under the Guidelines, it is not the recipient parent who is entitled to receive greater help when the payor’s income increases; it is the child who is entitled to a greater quantum of support: D.B.S., at para. 45.
80Even in cases where the payor parent has deliberately withheld income information, the remedy is a retroactive child support payment and a higher order of costs. In Jansen, for example, Sherr J. ordered almost $900,000 in retroactive child support going back to 2000, in what His Honour described as “one of the most egregious cases of financial deception this court has seen in many years”: at para. 47. The father was also ordered to pay costs of $100,000 to the mother: 2025 ONCJ 256.
81I accept the mother’s evidence that she prioritized her children’s well-being over her own. Many parents do so in many different ways. Any hardship the mother suffered weighs in favour of the retroactive support award and an enlarged temporal scope: Jansen, at para. 86. But, as a matter of law, the father’s misrepresentations resulted in a shortfall of support to the children. The damages flowing from the misrepresentations accrued to the children. Moreover, the years the mother spent working and going to university to obtain better employment are not a detriment to her. Rather, they are consistent with her own obligation to financially support her children.
82The claim for fraudulent misrepresentation, therefore, is dismissed.
83The mother also submits that she is entitled to damages for intentional infliction of mental distress. She did not plead this cause of action. In addition, she led no medical evidence and there was insufficient testimonial evidence of the harm. For all of these reasons, I dismiss this claim.
f. Tort of “Child Abuse Fraud”
84At the hearing, Ms. Hodgkin invited me to recognize a new tort for the novel harm suffered by recipient parents when the payor parent intentionally underpays child support. She submitted that the Supreme Court’s recent decision in Ahluwalia v. Ahluwalia, 2026 SCC 16, paves the way for the creation of new causes of action to ensure the law remains in step with the evolution of society.
85There is some attraction to the argument that the law should penalize a parent who does not abide by their child support obligation, so that there is no incentive to take a shot at prolonged deception. Moreover, compensation for the recipient parent would give teeth to the court’s recognition of how the underpayment of child support leads to hardship and contributes to the feminization of poverty: Michel, at para. 41.
86There are, however, many unaddressed issues that prevent the recognition of a new tort in the case before me.
87First, the mother has not delineated an actionable harm that cannot be compensated by way of a retroactive child support order, prejudgment interest, and a higher scale of costs. If child support is the right of the child, not the recipient parent, then the harm can be remedied within the existing structure of family law.
88Second, this is not a situation where the tort must exist to ensure payment of the proper amount of support. Leitch v. Novac, 2020 ONCA 257, 150 O.R. (3d) 587, on which the mother relies, is distinguishable. In that case, the court recognized the tort of conspiracy because the family law litigant was effectively judgment-proof due to his income and assets being hidden with the assistance of a co-conspirator. No such practical problem must be overcome in the case at bar, where the payor has accrued, but not disclosed, an increased income and owns many assets.
89Unlike Ahluwalia, there is a dearth of evidence establishing mental, physical or other harm suffered by the mother. This is not the evidentiary record needed to properly consider the proposed tort.
90Finally, there is an issue of procedural fairness. The mother did not plead the new tort or articulate the elements of the tort she seeks to be recognized. The matter proceeded as an uncontested trial, without notice to the father. More expansive legal submissions, with attention to the policy implications of the new cause of action, are needed.
91Consequently, I decline to recognize the novel tort of child support fraud on the facts, pleadings and legal submissions before me.
III. Costs, Interest and Enforcement
a. Costs
92Rule 24(3) of the Family Law Rules, O. Reg. 114/99, enacts a presumption that the successful party is entitled to costs of the case. Subrule (14) sets out the factors to be considered in setting the amount of costs, including the importance of the issues, the reasonableness of each party’s behaviour and time spent on the matter.
93Under r. 24(8), full indemnity costs shall be ordered if the court finds that a party has acted in bad faith. To come within the meaning of bad faith in r. 24(8), the “behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court”: S.(C.) v. S.(M.), 2007 CanLII 20279 (Ont. S.C.), at para. 17, aff’d 2010 ONCA 196.
94I find that the father acted in bad faith. For at least a decade, he failed to disclose his income accurately. He did not produce his notices of reassessment, and he did not disclose his rental income. He led the mother to believe that the rental properties were owned by his parents, but a title search shows otherwise. He refused to contribute meaningfully to the children’s s. 7 expenses, claiming poverty, yet he was earning more than double what the mother was earning. This was not unintentional conduct. He concealed information that resulted in financial harm to his children.
95The mother was largely successful in the litigation. She has obtained retroactive child support to 2015 and ongoing s. 3 Guideline support consistent with the father’s true income. The mother is entitled to full recovery of her costs of the child support claim, so long as those costs were reasonably incurred and are proportionate to the matters in issue.
96Because she was not successful in her tort claim, some discount is appropriate.
97Ms. Hodgkin’s bill of costs dated January 28, 2026, totals $44,908.15. I find that these costs were reasonably incurred to investigate the father’s hidden income, attempt to negotiate a resolution, and prepare for the trial. The matter was of utmost importance to the children, and the mother was wholly successful in establishing entitlement to retroactive support.
98Additional costs were incurred following the first day of trial to address evidentiary gaps and to prepare additional legal submissions. On the last day of trial, Ms. Hodgkin submitted an updated bill totaling $70,552.12. Some of the additional time is compensable because it relates to the preparation of further affidavit evidence and calculations requested by the court.
99Approximately 24 hours of time, however, was spent researching the issue of damages and spousal support. Some of these hours were spent by Ms. Hodgkin, some by an unnamed senior associate, and the rest by a law clerk. This time is not recoverable because the mother was not successful on the damages argument and did not advance the spousal support claim.
100It is difficult to determine precisely who among Ms. Hodgkin, her associate and the law clerk did what work in relation to the unsuccessful claim. I will assume that half the time was charged at Ms. Hodgkin’s hourly rate of $475 and the rest at the rate of $200 that is listed on the bill. Consequently, the total fees will be reduced by $8,100.
101The mother is entitled to costs fixed in the amount of $61,399.12 comprised of $53,052.50 in fees, $1,283 in disbursements, and H.S.T. of $7,063.62.
b. Prejudgment Interest
102The mother seeks prejudgment interest on the retroactive child support at the rate of 2.5% calculated annually. No submissions were made on the propriety of this rate or entitlement to interest.
103Subject to certain exclusions, s. 128(1) of the Courts of Justice Act (“CJA”) provides that a person who is entitled to an order for the payment of money is entitled to an award of interest at the prejudgment interest rate, calculated from the date the cause of action arose to the date of the order. The court retains a residual discretion under s. 130 of the CJA to disallow or limit prejudgment interest where it is just to do so.
104There are good policy reasons to award prejudgment interest on retroactive child support, particularly on the record before me. I have found the father to have acted in bad faith by concealing his accurate income for ten years. He is now required to pay – in 2026 dollars – what he should have paid over the past decade. He has had the benefit of the use of the funds that rightfully belonged to his children. He was able to use those funds to buy property and build a net worth of over $700,000.
105Prejudgment interest at a reduced rate was ordered on unpaid child support in Burke v. Poitras, 2020 ONSC 3162. The father in Burke, however, had paid no support at all for more than five years. In the case before me, the father has paid support consistently since 2014, albeit in a much lower amount than required.
106In Vanasse v. Seguin, [2009] O.J. No. 483 (Ont. S.C.), the court ordered prejudgment interest on retroactive child and spousal support to the date the support payments accrued. The father had paid support but was ordered to pay a lump sum retroactive support order on the basis of imputed income. Because the total amounts were not due on the first day of the retroactive support period, but were cumulative and increased on a monthly basis, Blishen J. exercised her discretion to reduce the interest rate outlined in the interest rate table under s. 127 of the CJA by half.
107There are various interest rates that could apply in this case. The prejudgment interest applicable at the time the mother commenced her Motion to Change was 4.8%. The rate applicable in the first quarter of 2015, at the outset of the retroactive support period, was 1.3%. The post judgment rate set out in the Final Order was 3%, and the mother seeks 2.5%.
108I have calculated that the average prejudgment interest rate between 2014 and 2024 was 1.93%. It is slightly higher if rates for 2025 and the first quarter of 2026 are included. In the exercise of my discretion, I fix prejudgment interest at 2%, payable on retroactive child support in the year it accrued.
109I agree with the methodology proposed by the mother. The annual shortfall of support will be calculated for each year between 2015 and 2025. Prejudgment interest of 2% shall be calculated annually on these amounts. The interest calculation submitted by counsel must be adjusted to reflect the correct amount of arrears. Otherwise, it is approved as to the method of calculating interest.
c. Enforcement
110The mother requests a lien pursuant to s. 34(1)(k) of the Family Law Act, R.S.O. 1990, c. F.3, to secure the child support, prejudgment interest, and costs owed by the father.
111The Motion to Change was brought under the Divorce Act, and it is this Act, not the Family Law Act, that applies. Nevertheless, under the Divorce Act, a court can secure the payment of support obligations by formally granting a charge against property: Dagg v. Cameron Estate, 2017 ONCA 366, 136 O.R. (3d) 1, at para. 60; Divorce Act, s. 15.1(4).
112As a result of the large retroactive support obligation and the father’s deliberate under-payment for many years, security is appropriate. The security will be in the form of liens registered by the mother on title against the father’s interest in his three properties: 425 Merrill Avenue, Lasalle; 54 Andfred Street, Leamington; and 149 Townsview, Essex. The liens will be in the amount of the total lump sum retroactive child support with interest, to be determined once counsel has provided the information requested in para. 54, above.
113The amount of the liens will reduce in accordance with the payments made by the father. There is no power of sale attached to these liens, but they become payable and have priority over the father’s interest when he sells the properties.
114This order does not restrict the use of any other measures to enforce the father’s child support obligations.
IV. Conclusion
115The respondent mother’s claim to vary the Final Order of Nolan J. dated May 13, 2014, is granted in part. Paragraph 6 of the Final Order shall be substituted once the child support lump sum is calculated.
116Ms. Hodgkin is invited to contact the Trial Coordinator to schedule a brief conference for the purposes of finalizing the calculation of retroactive child support and interest in accordance with these reasons.
117The respondent mother’s claim to obtain an order for spousal support is dismissed, without prejudice.
118The respondent mother’s claim for general and punitive damages is dismissed, with prejudice.
119Costs of the Motion to Change are fixed in the amount of $61,399.12, payable by the applicant father within 60 days. This amount shall be enforceable by the Family Responsibility Office.
Jasminka Kalajdzic
Justice
Released: June 24, 2026