Hunos v. Campos, 2011 ONCJ 599

Brampton Registry No 1777/10 DATE: 2011·XI·02 Citation: Hunos v. Campos , 2011 ONCJ 599 ONTARIO COURT OF JUSTICE BETWEEN: CORA HUNOS Applicant — AND — LEONARDO CAMPOS Respondent Before Justice Manjusha B. Pawagi Heard on 29 September 2011 Reasons for Judgment released on 2 November 2011 STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended],

section 7 . CASES CITED D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37, 2006 Cars​well​Alta 976. Marilou Nejal ............................................................................................. for the applicant mother Respondent father, Leonardo Campos .................................................................. on his own behalf JUSTICE M.B.

PAWAGI:— 1: NATURE OF THE CASE [ 1 ] The applicant mother, Cora Hunos, seeks thirteen years of retroactive child support from the respondent father, Leonardo Campos, for their child, Charmine Joy Hunos, age 16 (born on 12 August 1995), dating back to the parties’ separation on 15 July 1998. [ 2 ] The parties were able to resolve all the other issues on consent: A final order for sole custody to the applicant mother and access to the respondent father as agreed between the parties and in accordance with the child’s wishes was made on 10 May 2011; a final order for, among other things, the respondent father to pay ongoing child support commencing on 1 February 2011 of $338 per month and 50 per cent of the expenses under

section 7 of the Child Support Guidelines , O. Reg. 391/97, as amended, based on his 2010 income of $36,604 and the applicant mother’s income of $34,500 was made on 29 June 2011. [ 3 ] The issue of retroactive child support was heard as a trial of an issue on 29 September 2011, on documentary evidence.

The endorsement of 29 June 2011 noted that the parties could give oral evidence at the hearing if necessary, but neither sought to do so. 2: FACTS [ 4 ] The following facts are not disputed: The respondent father paid no child support for the child nor asked to have contact with the child until the applicant mother commenced the within court proceeding. The applicant mother did not ask him to pay child support until about the fall of 2008 (no precise date given but, in her application dated 25 October 2010, she states she first raised the issue of child support with him “about two years ago”).

The reason that she waited that long is that she had been trying to locate him since their separation in 1998 but did not know his whereabouts until she learned where he was through a friend ten years later at the end

of 2008. In response to the court’s questions about whether she took any formal steps to locate him in those ten years, for example, a driver’s licence search, her counsel answered that she did not, that she only made informal inquiries of people they knew. [ 5 ] After the parties separated, the applicant mother and the child lived with the maternal grandmother. The applicant mother and maternal grandmother took turns caring for the child. The applicant supported the child by working as a machine operator and assembler. She was able to provide the child with the necessities of food, shelter and education.

In 2002 the child took dancing lessons. The child is currently taking modelling lessons. [ 6 ] The only fact that the respondent father disputes is the date of separation. He states that they never lived together. This is not a material fact to this dispute. 3: LEGAL TEST [ 7 ] The Supreme Court of Canada in D.B.S. v. S.R.G. ; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry ; Hiemstra v. Hiemstra , 2006 SCC 37 , [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J.

No. 37, 2006 Cars​well​Alta 976, sets out factors to be considered in determining whether or not retroactive child support should be ordered: 1. reasonable excuse for why support was not sought earlier; 2. conduct of the payor parent; 3. circumstances of the child; and 4. hardship occasioned by a retroactive award. [ 8 ] If it is determined that retroactive child support ought to be awarded, the next question is the amount of the award that included a determination of the date of retroactivity. The Supreme Court has adopted the date of effective notice as a general rule, up to three years in the past.

An exception to this general rule can be the payor’s blameworthy conduct. 4: ANALYSIS [ 9 ] I find there is no reasonable excuse for why support was not sought earlier. The applicant mother offers no explanation why she took no steps to locate the respondent for 10 years, other than to ask friends about his whereabouts. [ 10 ] I find that the conduct of the respondent father is blameworthy.

He knew he had a daughter and he gave her no financial support whatsoever until the court proceeding began when the child was 16 years old. [ 11 ] Very little evidence was provided regarding the circumstances of the child. [ 12 ] Very little evidence was provided regarding what hardship would result for the respondent father from a retroactive award, other than the respondent father’s submission that he has another child to support. [ 13 ] Although the court provides that a support payor’s blameworthy conduct can be reason to go back farther than three years in the past, I find that in this case it is offset by the support recipient’s failure to make any real effort to locate the support payor and to seek child support.

Thus, I am guided by the date of effective notice as the starting date for retroactive child support. The precise date of effective notice was not provided, just sometime in the fall of 2008. Thus, I will use 1 January 2009 as the starting date. [ 14 ] The respondent father’s income in 2009 was $33,376 and thus he owes $309 per month for 2009 (12 months); his income in 2010 was $36,604 and thus he owes $338 per month for 2010 (12 months) and for five months in 2011 until the ongoing child support commenced on 1 June 2011.

The total of retroactive child support owed is $9,454. 5: ORDER [ 15 ] Final order to go as follows: Child support arrears are fixed at $9,454 as of 31 May 2011. The respondent father shall pay the arrears at the rate of $300 per month commencing on 1 November 2011 until paid in full. [ 16 ] There shall be no order as to costs.