Ponte v. Paiva, 2010 ONCJ 603

Toronto (North York) Registry No: D47483/09 DATE: 2010·XI·22 CITATION: Ponte v. Paiva , 2010 ONCJ 603 ONTARIO COURT OF JUSTICE BETWEEN: ELISABETE PONTE, Applicant, — AND — VALTER LIMA PAIVA, Respondent. Before Justice Stanley B.

Sherr Heard on 19 November 2010 Reasons for Judgment released on 22 November 2010 SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Deviation from table amount — Undue hardship — Evidence — Proof of lower standard of living — “Comparison of household standards of living” test — Within month of birth of daughter (now 5 years old), parents separated — Father made voluntary child support payments throughout following year and then stopped — It was not until 2½ years later (on 27 March 2009) that mother filed formal court claim for child support — Father claimed that he had been making monthly payments of $600 for support of 3 children by much earlier relationship under separation agreement that was partly written, partly oral and that mother’s application for paying full table amount under Child Support Guidelines would constitute undue hardship for him — Court noted that, to invoke

section 10 of Guidelines, father not only had to show that his hardship was “undue” but that his household’s standard of living was lower than that of mother — Father stated that his monthly payments for support of 3 other children were made in cash but his bank accounts did not reflect this — In fact, he began paying $600 per month by cheque just this year, feeding suspicion that this sum was only now being paid to make possible his claim for undue hardship — Father also testified that he was now responsible for special (day-care, orthodontic, orthotic and dental) expenses of 3 other children, for which he did not pay until this year, but documentary trail to back up those payments was scanty — He offered no supporting evidence of what reimbursement he could expect from his insurer and no evidence of contribution to these expenses by children’s mother — In fact, father was openly hostile to questions about that woman’s income and about what her share of those expenses was, maintaining that this information was not anyone’s business — Court found it more than coincidental that father suddenly began paying special expenses for other 3 children for first time this year, when he was faced with this application — Father was not credible witness — He had not convinced court that his household’s standard of living was lower than that of mother — For this and other reasons, court rejected father’s claim for undue hardship.

SUPPORT ORDERS — Assessment of quantum — Child support guidelines — Deviation from table amount — Undue hardship — Evidence — Proof that hardship is “undue” — Within month of birth of daughter (now 5 years old), parents separated — Father made voluntary child support payments throughout following year and then stopped — It was not until 2½ years later (on 27 March 2009) that mother filed formal court claim for child support — Father claimed that he had been making monthly payments of $600 for support of 3 children by much earlier relationship under separation agreement that was partly written, partly oral and that mother’s application for paying full table amount under Child Support Guidelines would constitute undue hardship for him — Court noted that, to invoke

section 10 of Guidelines, father had to show that his hardship was exceptional, excessive or disproportionate, and not merely awkward or inconvenient — In this case, father’s payment of table amount of child support would certainly be difficult for him but he failed to prove, on balance of probabilities, that hardship would be “undue” — In fact, he failed to prove that he was paying $600 per month for support of his other three children on consistent basis — He claimed that, until this year, his monthly payments were made in cash but his bank accounts did not reflect this — In fact, he began paying $600 per month by cheque just this year, feeding suspicion that this sum was only now being paid to make possible his claim for undue hardship — For this and other reasons, court rejected father’s claim for undue hardship.

SUPPORT ORDERS — Form of order — Retroactive award — Grounds for making retroactive child support — Blameworthy conduct of payor — Within month of birth of daughter (now 5 years old), parents separated — Father made voluntary child support payments throughout following year and then stopped, later claiming that he had lost mother’s address — It was not until 2½ years later (on 27 March 2009) that mother filed formal court claim for child support, which she wanted made retroactive for 1 year — Court reviewed and balanced four factors in leading case of D.B.S. v.

S.R.G ., 2006 SCC 37 and found that mother had no real explanation for sizeable delay

in bringing her application — However, delay factor was more than offset by blameworthy conduct of father who, since he had been paying support after separation, was perfectly aware of his child support obligation, but chose to stop payments until ordered to do so by court 3 years later — Court rejected his story that he did not know mother’s address — Admittedly, mother did move after separation but father was still paying child support after she moved — Clearly, father had chosen to promote his own interests over those of his child who had been disadvantaged by his non-payment of support — He should consider himself lucky that court was backdating order by only 1 year — Creation on instant arrears of over $13,000 would create hardship on father, but it could be managed through monthly repayment plan — Nevertheless, payment by instalments was lenience that was conditional on father’s keeping up to date in his support payments — If he started to go into default, entire balance of outstanding arrears would immediately become due and payable.

STATUTES AND REGULATIONS CITED Child Support Guidelines , O. Reg. 391/97 [as amended],

section 3 ,

section 7 ,

section 10, subsection 10(1) and subsection 10(2) . 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. Hanmore v. Hanmore , 2000 ABCA 57 , 255 A.R. 163, 220 W.A.C. 163, 4 R.F.L. (5th) 348, [2000] A.J. No. 171, 2000 Cars​well​Alta 144 (Alta. C.A.). Van Gool v.

Van Gool , 1998 CanLII 5650 , 113 B.C.A.C. 200, 59 B.C.L.R. (3d) 395, 64 B.C.L.R. (3d) 94, 184 W.A.C. 200, [1999] 7 W.W.R. 443, 166 D.L.R. (4th) 528, 44 R.F.L. (4th) 314, [1998] B.C.J. No. 2513, 1998 Cars​well​BC 3028 (B.C.C.A.). Alawi K. Mohideen, agent for Judith D. Arillaga ............................ counsel for the applicant mother Durval M. Martins ....................................................................... counsel for the respondent father JUSTICE S.B.

SHERR:— 1: INTRODUCTION [ 1 ] The applicant seeks an order that the respondent pay her child support for their child Elisabete, born on 22 August 2005. She seeks an order that support be retroactive to 1 April 2008. She is only seeking the table amount of child support pursuant to the Child Support Guidelines , O. Reg. 391/97, as amended (the “guidelines”). [ 2 ] The respondent asks the court to order less than the guideline table amount. He claims undue hardship pursuant to

section 10 of the guidelines. He opposes any retroactive claim for support. [ 3 ] The parties filed affidavits and financial statements that, by agreement of counsel, formed their direct evidence at trial. No other witnesses were called. The applicant cross-examined the respondent; the respondent chose not to cross-examine the applicant. 2: MATERIAL FACTS [ 4 ] The following are the material facts: (

a) The parties lived together for about four months and separated in September of 2005. (

b) Elisabete is the only child that the parties had together. (

c) The respondent voluntarily paid the applicant child support of $200 per month from the date of separation until September of 2006, at which time he chose to stop paying support. (

d) The applicant issued this application on 27 March 2009. (

e) This court made a temporary “without prejudice” support order on 29 September 2009, requiring the respondent to pay the applicant child support of $300 each month, commencing on 1 October 2009. The court endorsement made it clear that this order was subject to adjustment as to quantum and start date. This order is in good standing. (

f) The parties resolved all parenting issues between them on a final basis on 29 September 2009. (

g) The respondent has three children by another relationship. They live with their mother. The respondent entered into a separation agreement with the mother in 1999, when they had their first child, to pay child support to her of $200 per month. The respondent claims that he orally agreed with the mother to pay a further $200 per month for each of the next two children. He testified that he has complied with this agreement. (

h) The respondent works at Frankfurt Investments Limited. He earned $61,506.72 in 2008 and $59,465 in 2009. T he parties agreed to use his 2009 income to calculate ongoing child support. The respondent lives alone. (

i) The applicant lives with her common-law spouse who earns $83,963 per annum. They have a three-year-old child who lives with them. The applicant also has a 13-year-old child from another relationship who lives with them. She receives no child support from that child’s father. The applicant is a homemaker and earns no income.

(

j) The parties jointly filed as exhibit 1 a Support-Mate standard of living analysis, where they accept the incomes set out above. It shows that, even if it is accepted that the respondent is paying $600 per month for his other three children, his household standard of living is still higher than that of the applicant. 3: UNDUE HARDSHIP [ 5 ] It is very difficult to establish a successful undue hardship claim under

section 10 of the guidelines. [ 6 ]

Section 3 of the guidelines sets forth the presumptive rule that the amount of child support provided for in the tables, together with any “add ons” under

section 7 for special or extraordinary expenses, is the amount that the payor is required to pay for children under the age of majority. This presumptive rule can be deviated from in certain defined situations. One of those situations is where a payor can establish that the amount he or she is required to pay under the guidelines would cause “undue hardship” to either the payor or to a child in respect of whom the request for relief is made. [ 7 ] The undue hardship test under

section 10 of the guidelines is two-fold. The spouse applying for relief under this

section must prove that payment of the table amounts would cause undue hardship under subsection 10(1), having regard to the criteria in subsection 10(2). Subsection 10(2) sets out a non-exhaustive list of circumstances that may give rise to a finding of undue hardship. If this test is met, the applicant must go on to establish that, if required to pay the amount of support otherwise payable under the guidelines, the standard of living of his or her household would be lower than that of the household of the other party.

If this dual test is met, the court has the discretion to award a different amount of support than that otherwise required under the guidelines. The respondent has the onus of providing adequate supporting documentation to prove his undue hardship claim. See Van Gool v. Van Gool , 1998 CanLII 5650 , 113 B.C.A.C. 200, 59 B.C.L.R. (3d) 395, 64 B.C.L.R. (3d) 94, 184 W.A.C. 200, [1999] 7 W.W.R. 443, 166 D.L.R. (4th) 528, 44 R.F.L. (4th) 314, [1998] B.C.J. No. 2513, 1998 Cars​well​BC 3028 (B.C.C.A.). [ 8 ] In the first part of the test under

section 10, the respondent must prove more than hardship. He must show that the hardship is exceptional, excessive or disproportionate, not merely awkward or inconvenient. See Hanmore v. Hanmore , 2000 ABCA 57 , 255 A.R. 163, 220 W.A.C. 163, 4 R.F.L. (5th) 348, [2000] A.J. No. 171, 2000 Cars​well​Alta 144 (Alta. C.A.). While the circumstances indicate that the payment of the table amount of child support will be difficult for him, the respondent did not prove, on a balance of probabilities, that it would create an undue hardship, as defined above.

He was not even able to establish to the court’s satisfaction that he pays $600 per month of child support, as he claims, for his other three children on a consistent basis. He claims that he paid cash for these children prior to 2010, but the bank accounts that he filed do not show this. It appears that he started paying $600 per month by cheque at some point in 2010.

The court was left with the distinct impression that this amount is now being paid to facilitate his undue hardship claim. [ 9 ] The respondent’s counsel conceded in closing argument that the evidence did not support a viable undue hardship claim under

section 10 of the guidelines as the respondent could not establish that his household’s standard of living was lower than that of the applicant’s. He asked the court to consider hardship in the context of any claim for support arrears. [ 10 ] Counsel was correct in conceding this.

The software comparing the standards of living of the respective households, jointly filed as exhibit 1, shows that the applicant’s household has the lower standard of living. [ 11 ] The respondent testified that he now has additional child care expenses in 2010 for the other three children, which has further reduced his standard of living. He says that he is now paying for their day-care, orthodontic, orthotic and dental expenses. His evidence was that he did not pay towards any of these expenses prior to 2010. [ 12 ] The respondent provided scant evidence in support of this testimony.

He provided photocopies of some baby-sitting receipts (starting in April of 2010), without calling the baby-sitter. It appears that he has paid some orthodontic, orthotic and dental expenses in 2010, but did not provide supporting evidence of what the reimbursement would be from his insurer. Very importantly, he provided no evidence of the contribution to these expenses by the children’s mother. She was not called as a witness; he provided no proof of her income, her contribution to these expenses or evidence about what her contribution should be.

This is essential evidence to evaluate the undue hardship claim and incumbent upon the respondent to produce. The respondent was openly hostile to questioning in this area. In essence, the respondent testified that this was no one’s business. [ 13 ] The court finds it more than coincidental that the respondent suddenly began paying special expenses for the other three children for the first time in 2010, when he did not pay these expenses before and faced with this application. These payments appear to be designed to buttress his undue hardship claim.

The court did not find him credible. [ 14 ] The court is not satisfied, based on the paucity of evidence, that the respondent’s household has a lower standard of living than that of the applicant. 4: RETROACTIVE CHILD SUPPORT [ 15 ] The next issue is that of retroactive support. 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, set out the factors to be considered in order to make a retroactive child support order: conduct of the payor, circumstances of the child, a reasonable explanation for the delay in seeking relief and undue hardship to the payor that would result from a retroactive order. [ 16 ] I find that the applicant’s request to order support retroactive to one year before the start of the application to be a very reasonable balancing of the factors in D.B.S. v. S.R.G. , supra . The applicant did delay in bringing her application, without any real explanation.

However, this is more than offset by the respondent’s blameworthy conduct. He was aware of his child support obligation

(since he was paying support from the date of separation until September of 2006), but chose not to pay any child support after September 2006 until this court made its order in September of 2009. The court does not accept his evidence that he did not know where the applicant lived. As the applicant pointed out, the respondent was still paying child support after she moved in 2005. The respondent chose to prefer his own interests to those of the child. He should consider himself fortunate that the court is not going further back with its retroactive support order.

The child has been disadvantaged by his non-payment of support. The court does recognize that a huge lump-sum retroactive award would create hardship for the respondent (as opposed to undue hardship). He has significant debt (albeit not arising out of his relationship with the applicant or his child support obligations to Elisabete) and four children in total to support. [ 17 ] The respondent, to a large extent, is the author of his own misfortune.

It was his decision to ignore his child support obligations to Elizabete that created the large arrears claim. [ 18 ] This order will require repayment of support arrears in excess of $13,000. Any residual hardship arising out of this order can be addressed through a monthly repayment plan. The court will make such an order, but this will be done on the basis that the respondent remains up-to-date in his support payments. If he goes into default, the payment of the arrears will be accelerated. 5: ORDER [ 19 ] A final order will go on the following terms: 1.

Commencing on 1 April 2008, the respondent shall pay to the applicant the table amount of child support in the sum of $571 per month, based on an annual income of $61,507. 2. Commencing on 1 January 2009, the respondent shall pay to the applicant the table amount of child support in the sum of $553 per month, based on an annual income of $59,465. 3. The respondent will be credited with child support payments made pursuant to the temporary support order. 4. Commencing on 1 December 2010, the respondent shall pay to the applicant the sum of $100 each month on account of arrears.

However, if the respondent is more than 30 days late on any ongoing or arrears support payment, the entire amount of arrears shall immediately become due and payable. 5. The respondent shall provide the applicant annually, by 30 June of each year, a complete copy of his income tax return and notice of assessment. 6. If the applicant seeks costs, she should make written submissions on or before 3 December 2010. The respondent will have until 14 December 2010 to serve and file any response. Submissions are not to exceed 2 pages, not including any offer to settle or bill of costs.