2021 ONCJ 437, 2021 ONCJ 437

CITATION : Davidson v. Patten , 2021 ONCJ 437 DATE : August 3, 2021 D 81915/15 Ontario Court of Justice Davidson v Patten Endorsement Father (unrepresented) Mother did not appear, and was not represented 1 ) The father [1] brought a motion to change a consent order made in the Ontario Court of Justice in Toronto by Zisman, J. on 7 March 2017. The motion to change was brought in Toronto under the Interjurisdictional Support Orders Act, 2002 . [2] 2 ) The original order provided the following; (

a) Child support $694 per month from March 2017 on father’s 2015 income of $80,515; (

b) Annual financial disclosure; and, (

c) Retroactive support fixed at $10,000, to be paid as follows: i. $3,500 by 1 June 2017; and, ii. $6,500 at $100 per month from March 2017. 3 ) Both parents were present at court and were represented by lawyers when the original order was made. 4 ) The father’s motion to change (started on 15 January 2021) claimed the following:

a) To change support to $186 per month on unspecified income from 1 January 2018 [3] ; and,

b) To reduce arrears to 0 as of 31 December 2020. 5 ) The father asked for an oral hearing and was granted an oral hearing, by endorsement dated 10 May 2021. Both parents were given the opportunity to serve and file additional material on the motion to change, and both did so. The oral hearing was scheduled for 3 August 2021. The court waited ½ hour past the scheduled time, and the mother did not attend. The hearing proceeded in her absence. 6 ) The court considered all the material filed by the parents in the Continuing Record, and the evidence of the father given at the hearing. 7 ) Under ISOA s. 35, the court hearing an application applies the law of Ontario.

Choice of law rules 35 The following rules apply with respect to determining entitlement to receive or to continue to receive support and the amount of support: 1. In determining a child’s entitlement to receive or to continue to receive support, the Ontario court shall first apply Ontario law, but if the child is not entitled to support under Ontario law, the Ontario court shall apply the law of the jurisdiction in which the child is habitually resident. 2. In determining the amount of support for a child, the Ontario court shall apply Ontario law. 3.

In determining the entitlement of a party to the application to receive or to continue to receive support, the Ontario court shall first apply Ontario law, but if the party is not entitled to support under Ontario law, the Ontario court shall apply, i. the law of the jurisdiction in which the party is habitually resident, or ii. if the party is not entitled to support under the law of the jurisdiction in which he or she is habitually resident, the law of the jurisdiction in which the parties last maintained a common habitual residence. 4.

In determining the amount of support for the party, the Ontario court shall apply Ontario law. 2002, c. 13, s. 35 ; 2017, c. 20 , Sched. 2, s. 7 (1), 21. The Test on the Motion to Change 8 ) The father’s motion to change the child support terms of the order made 7 March 2017 was determined under s. 37(1) and (2.1) of the Family Law Act , [4] (“ F.L.A. ”) , and s. 14 of the Child Support Guidelines [5] (“the Guidelines”): Application for variation 37.

(1) An application to the court for variation of an order made or confirmed under this Part may be made by,

a) a dependant or respondent named in the order;

b) a parent of a dependant referred to in clause (a);

c) the personal representative of a respondent referred to in clause (a); or

d) an agency referred to in subsection 33 (3). 1997, c. 20, s. 6. . . . . . . . Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may, (

a) discharge, vary or suspend a term of the order, prospectively or retroactively; (

b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and (

c) make any other order for the support of a child that the court could make on an application under

section 33. 1997, c. 20, s. 6. Variation of Orders for the Support of a Child Circumstances for variation 14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada) , any one of the following constitutes a change of circumstances that gives rise to the making of a variation order: (

a) In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

(

b) In the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either parent or spouse or of any child who is entitled to support. (

c) In the case of an order made under the Divorce Act (Canada) before May 1, 1997 , the coming into force of

section 15.1 of that Act, enacted by

section 2 of

chapter 1 of the Statutes of Canada, (1997). (

d) In the case of an order made under the Act, the coming into force of subsection 33 (11) of the Act. O. Reg. 391/97, s. 14 ; O. Reg. 446/01, s. 3. 9 ) Sections 37(2.2) to 37(2.6) of the Family Law Act and the Child Support Guidelines provide the framework within which the court is to undertake the calculation of child support in a variation proceeding.

The object of the child support provisions set out in the Act and the Guidelines is to ensure as reasonably as possible that children are not disadvantaged by the separation of their parents, by providing fair and predictable standards of support, facilitating the calculation of support, and rendering the legal process for addressing child support issues more efficient. [6] 10 ) Both s. 37(2) and (2.1) of the F.L.A. give a court jurisdiction to "discharge, vary or suspend" the support "prospectively or retroactively".

This gives the court jurisdiction to vary a child or spousal support order retroactively. [7] 11 ) The powers of the court on a motion to vary a child support order are very broad. The court can not only change the terms of the order, either prospectively or retroactively, but can also suspend or discharge the order, either in whole or in part, and on either a prospective or retroactive basis. The court's authority with respect to arrears is similarly broad, and includes the power to rescind the arrears and interest, either entirely or in part, or to reduce the amount of arrears payable.

The powers of the court in a variation proceeding also include the power to order appropriate set-offs. [8] 12 ) As set out in section 37(2.1) of the Family Law Act , a threshold issue that must be addressed in a motion to change child support is whether there has been a change in circumstances within the meaning of the Guidelines since the order was made, or whether evidence that was not available at the hearing respecting the order has now become available.

Section 14.1 of the Guidelines provides that where the amount of child support set out in the order includes a determination made in accordance with the Tables under the Guidelines, any change in circumstances that would result in a different order for the support of the child constitutes a change that gives rise to the making of a variation order.

Accordingly, a change in the payor's income or evidence that the child is no longer entitled to child support under the Family Law Act would satisfy the threshold test of whether there has been a change in circumstances since the previous order was made. [9] 13 ) In a motion to change the onus is on the moving party (here, the father), to prove his case, and to show that there has been a change in circumstances. Change in Circumstances 14 ) The father argues that the following are the changes in circumstances he has experienced since the original order was made: (

a) He lost his job in 2017; (

b) In February 2018 he had a major physical and mental breakdown; (

c) He had two more children after the court order; (

d) He was only able to work part time; (

e) He was on and off social assistance and employment insurance; (

f) He had psychological counselling for anxiety and depression; (

g) He was on anti-anxiety medication; and, (

h) There has been a downturn in the Alberta economy.

The Father’s Evidence 15 ) The evidence provided by the father was inadequate on each ground of his argument that there had been a change in circumstances sufficient to warrant a change in child support. (

a) He lost his job in 2017 : no evidence was provided regarding this. The original order was dated 7 March 2017. No date of the loss of job was provided. No documentation regarding the loss of job was provided. No information was provided as to the reason for the loss of the job. No evidence of job searches was provided; (

b) In February 2018 he had a major physical and mental breakdown ; no evidence or, at best, inadequate evidence was provided about this. No medical evidence was provided about the actual breakdown. No date of this event was provided. There was one letter from a doctor dated 1 October 2018 stating that the father “could not work from 1 October 2018 to 2 November 2018 due to medical reasons” (a one-month period). Such a statement is inadequate for the purposes intended by the father. Medical evidence regarding inability to work for medical reasons must contain at least the following information: i. Diagnosis; ii.

Prognosis; iii. Treatment plan (is there a treatment plan? And what is it?); iv. Compliance with the treatment plan; and, v. Specific and detailed information connecting the medical condition to the ability to work (e.g, this person cannot work at the pre-injury job; this person cannot work for three months; this person cannot work at physical labour; this person cannot return to work ever); (

c) He had two more children after the court order ; at the time of the consent order on 7 March 2017, the father had three children: Abbigail, the child in this case, born […] 2012; Deshaun, born […] 2012; and, Imani, born […] 2017. The father then had a fourth child, Amoura, born […] 2018. The father says that at the time of the consent order that he did not know about the birth of the third child Imani. The father made a claim to reduce child support below the table amount based on undue hardship. However, he provided no evidence to support this claim.

The court order for support for Imani was provided (a temporary consent order by Spence, J. made 1 March 2018 at this courthouse, for $761 per month from 1 March 2018 on income of $86,506 [10] ). No final order for child support for this child was provided. He did not provide any proof that child support payments were being made for this child (e.g., a Statement of Arrears from the Family Responsibility Office). He acknowledged that there was no court order for the child support for Deshaun or Amoura. No proof of payment of any child support for either of these children was provided; (

d) He was only able to work part time ; no evidence was provided about this issue. There were no dates given for the period during which the father worked part-time. No medical evidence was provided to support a claim that he was only able to work part time for medical reasons.

The father produced Notices of Assessment for his income for these years: Year Line 150 income 2017 $85,080 2018 $16,975 2019 $21,000 No explanation was offered for the dramatic reduction in the father’s income from $85,080 in 2017 to $16,975 in 2018. Only when asked by the court did the father provide the income amounts he wanted the court to rely on for changing support for these years: Year Income 2019 $28,000 2020 $30,000 2021 $35,000 No evidence was provided to prove any of the income amounts for these years (other than the 2019 Notice of Assessment for $21,000). No proof of the father’s current income was provided. (

e) He was on and off social assistance and employment insurance : no proof of receipt of social assistance or employment insurance was provided. No dates were provided regarding the receipt of either social assistance or employment insurance; (

f) He had psychological counselling for anxiety and depression : no medical evidence of a diagnosis of anxiety or depression was provided. Other than the letter referred to above dated 1 October 2018, no medical evidence (i.e., from a doctor) was provided at all. There was a letter from a social worker dated 9 April 2019 who stated that the father’s “anxiety symptoms and depression symptoms are significant barriers to his overall mental wellness”, and that “his work and his personal life have been negatively impacted due to his depression and anxiety levels”.

However this person is not qualified to make a diagnosis, and did not make a diagnosis. There were letters provided confirming the father’s attendance at counselling sessions in 2017, 2018, 2019 and 2020 (21 sessions in total); (

g) He was on anti-anxiety medication : no medical evidence was provided about this. A copy of a prescription dated 26 March 2019 for Ativan and Celexa from a doctor was provided. No diagnosis was connected to these medications. No explanation was offered as to what conditions these medications treat; and, (

h) There has been a downturn in the Alberta economy : no evidence was provided about this, not even any evidence regarding the father’s area of work (which was not disclosed). 16 ) In the father’s financial statement there was additional information relevant on the issue of his request to reduce child support: (

a) The father has a car valued at $49,500, for which there is a car loan of $67,450; (

b) He shows an RRSP valued at $1,128,065. No explanation was offered, but when asked about this, he said it was life insurance, and was not available to borrow money from; and, (

c) He spends $1,535 per month on car costs: a. Loan payment $905; b. Gas and oil $400; and,

c. Insurance and license $230. 17) This is evidence about lifestyle. Lifestyle can provide the criteria for imputing income. [11] Lifestyle is not income, but rather evidence from which an inference may be drawn that the payor has undisclosed income that may be imputed for the purpose of determining child support. [12] Analysis 18) The court makes these findings about the father: (

a) he has failed to provide full and complete income information when under a legal obligation to do so; (

b) he has not proven that he is earning less money than he did when the original order was made; (

c) the onus is on the party asking to change the court order to provide a complete financial picture, which he has not. An adverse inference should be drawn against him; (

d) the court can and should draw adverse inferences regarding his income and his assets, based on his lack of disclosure; and, (

e) he has not shown reasonable, diligent or legitimate efforts to comply with the court order. 19) It is difficult to determine what the father’s current income is. Part of the reason for this is his lack of disclosure. But a payor cannot fail to comply with the rules about disclosure and then benefit from his behaviour. The onus was on him to produce adequate disclosure about his income.

The court will draw an adverse inference regarding his failure to make disclosure and his income. 20) In a case about child support, and in a motion to change when he is the moving party, the father’s obligations under the Family Law Act , the Family Law Rules and the Child Support Guidelines are clear and specific. He is obliged to produce evidence about his personal income for the years in question. He provided almost no financial disclosure, information that was incomplete, and from which information it was not possible to determine his personal income.

The information produced does not come close to meeting the disclosure requirements. 21) The father has not met the onus on him to produce evidence of change in circumstances since the order was made. 22) None of the evidence provided supports the father’s claim to reduce arrears of support to 0 as of 31 December 2020, and that claim is dismissed. Orders 23) The father’s motion to change is dismissed. No changes will be made to the order of 7 March 2017. _______________________ Justice Carole Curtis

[6] D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 CarswellAlta 976, 2006 SCC 37, J.E. 2006-1543,[2006] A.W.L.D. 2466, [2006] A.W.L.D. 2467, [2006] W.D.F.L. 2909, [2006] W.D.F.L. 2917, 61 Alta. L.R. (4th) 1, 351 N.R. 201,[2006] 10 W.W.R. 379 (S.C.C.), (together referred to as “D.B.S.”, or “the D.B.S. cases”); Ethier v. Skrudland, 2011 SKCA 17 (C.A.); Geran v. Geran, [2008] S.J. No. 703,2008 SKQB 460, 325 Sask.R. 89, 174 A.C.W.S. (3d) 215 (Sask. Q.B.); [2011] S.J.

No. 310, 2011SKCA 55, 97 R.F.L. (6th) 68, 371 Sask.R. 233, [2011] 10 W.W.R. 474, 201 A.C.W.S. (3d) 1003, 2011 CarswellSask 333 (Sask. C.A.); Meyer v. Content, [2014] O.J. No. 4992, 2014 ONSC 6001 (Ont. Sup. Ct.), para. 65. [7] Mondino v. Mondino, [2013] O.J. No. 5147, 2013 ONSC 7051, 2013 CarswellOnt 15569 (Ont. Sup. Ct.), para. 82. [8] Campbell v. Chappel, 2006 CarswellNWT 28 (S.C.); Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 19. [9] Meyer v. Content, supra, 2014 (Ont. Sup. Ct.), para. 20. [11] Aitken v. Aitken [2003] O.J. No. 2780 (Ont. Sup. Ct.); Jonas v. Jonas [2002] O.J. No. 2117 (Ont. Sup.

Ct.); Price v. Reid, 2013 ONCJ 373 (Ont. Sup. Ct.).