2019 ONCJ 95, 2019 ONCJ 95

CITATION : Hyman v. Wright , 2019 ONCJ 95 DATE : February 25, 2019 COURT FILE NO. D46033/08 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) SHONA LERATO HYMAN ANDREW SUDANO and LAURA GREGG, for the APPLICANT ) APPLICANT ) ) - and - ) O’NEIL DENNY WRIGHT ) ACTING IN PERSON RESPONDENT ) ) ) ) ) ) HEARD: FEBRUARY 4 and 22, 2019 JUSTICE S.B. SHERR REASONS FOR DECISION Part One – Introduction [ 1 ] On September 25, 2018, the court released its decision regarding the applicant’s (the mother’

s) motion for

summary judgment. See: Hyman v. Wright , 2018 ONCJ 655 . The court granted the mother’s motion and awarded her custody of the parties’ two children (the children). The father was given supervised access to the children. He was ordered to pay the mother child support of $582 each month,

being the Child Support Guidelines (the guidelines) table amount for two children, based on his annual income of $38,816, starting on January 1, 2018. The father was also ordered, starting on January 1, 2018, to pay the mother $46 each month, being his share of the children’s special expenses pursuant to

section 7 of the guidelines (section 7 expenses). The temporary support order that had set out the father’s table support obligation from July 1, 2017 to December 31, 2017 was made final. [ 2 ] This left the issue of retroactive child support, for the period prior to July 1, 2017 as a genuine issue requiring a trial. [ 3 ] The mother has claimed retroactive child support, including a claim for

section 7 expenses, for the period from January 1, 2012 until June 30, 2017. She is also claiming

section 7 expenses for the period from July 1, 2017 until December 31, 2017, as that issue wasn’t addressed in the

summary judgment decision. The mother submits that the father owes her $37,621 for retroactive support. [ 4 ] The father has asked that the mother’s claims be dismissed. [ 5 ] Directions were given for a focused trial of these issues. The trial took place on February 4th and 22nd, 2019. The parties both filed updated affidavits and the father filed an updated financial statement, together with additional financial disclosure. The court heard oral evidence from both parties and they cross-examined each other. [ 6 ] The issues for this trial are:

a) Should the court order retroactive child support (including retroactive

section 7 expenses)?

b) If so, when should the retroactive support obligation begin?

c) What amount, if any, should the father be required to pay for

section 7 expenses between July 1, 2017 and December 31, 2017?

d) If retroactive support is ordered, what credit should the father receive for child support paid to the mother during the retroactive period?

e) What terms, if any, should there be for the payment of any support arrears? Part Four – Material facts 4.1 Background [ 7 ] The mother is 38 years old. The father is 39 years old. [ 8 ] The parties never cohabited. They had a relationship between 2007 and 2011. [ 9 ] The parties had two children together. K. is 11 years old and R. is 8 years old. [ 10 ] The children have always lived with the mother. The mother has one other child living with her from another relationship. [ 11 ] The father has two children from another relationship, ages 16 and 13. They do not live with him.

Pursuant to the November 2, 2010 order of Justice Steven Clark, the father is required to pay child support of $400 each month to the mother of those children. [ 12 ] The mother has brought three applications for custody and child support against the father. Her first application was issued in October, 2008 and was quickly withdrawn in December, 2008. Her second application was issued in 2014. She obtained an order for substituted service of the application on the father on February 13, 2015.

The mother did not attend at court on May 1, 2015 and her application was dismissed as abandoned. [ 13 ] This is the mother’s third application. She issued it on June 26, 2017. [ 14 ] The father filed his Answer/Claim on August 14, 2017. [ 15 ] The court granted the mother’s

summary judgment motion on September 25, 2018. [ 16 ] The mother was permitted to make written costs submissions. The father chose not to make any written submissions. On December 15, 2018, the court ordered the father to pay the mother’s costs, fixed in the sum of $4,200. 4.2 Findings of facts on

summary judgment motion [ 17 ] The court made the following findings of fact in its

summary judgment decision that are relevant to the retroactive support issue:

a) The father ignored the mother’s requests for updated financial disclosure. He did not produce his tax returns and notices of assessment for 2016 or 2017, or proof of his 2018 income. An adverse inference was made against the father due to his failure to provide adequate financial disclosure.

b) The father deposed in his financial statement that he was earning annual income of $38,400.

c) The father’s 2015 notice of assessment showed line 150 income of $40,447.

d) The father’s revised 2014 notice of assessment showed line 150 income of $45,778.

e) The father provided 3 of his pay stubs, the last being for the pay period ending on October 29, 2017. His gross year-to-date income in that statement was $32,098. This covered a 43-week period. Projected out over a year this came to $38,816. This was the income used to calculate his child support obligation starting on July 1, 2017.

f) The mother’s line 150 income on her 2017 notice of assessment was $27,893. Most of that income came from employment insurance ($24,304).

g) The mother’s line 150 income on her 2016 notice of assessment was $43,585 and was $38,539 on her 2015 notice of assessment.

h) The mother was earning 2018 income at the rate of $38,882.

i) The father provided no evidence that he was actually paying child support for his other two children. Given his poor payment history for the children in this case, it was incumbent on him to provide that proof.

j) The father had not acted in good faith. He had not complied with court orders or properly supported the children. 4.3 Findings of fact at trial [ 18 ] The mother is claiming child support retroactive to January 1, 2012.

Her income during this period was not disputed and was as follows: 2012 - $36,370 2013 - $41,363 2014 - $38,034 2015 - $38,539 2016 - $43,585 2017 - $27,893 [ 19 ] The father’s income from 2013 until 2017 was also not disputed. [1] It was as follows: 2013 - $31,867 2014 - $45,778 2015 - $40,447 2016 - $21,691 2017 - $40,103 [ 20 ] The mother asked the court to impute the father’s income for 2016 at the average of his 2013 to 2015 income ($39,364). The court declines to do so for the following reasons:

a) The father actually earned $21,691 in 2016. It is the best evidence of his income for that year.

b) The father worked part-time in 2016 while upgrading his skills as a gas technician. He took this step in the hope of increasing his marketability and income-earning potential. While he hasn’t obtained a financial advantage at this point, the upgrading may benefit him in the future. This will likely result in more support for the children.

c) There is no evidence that the father attempted to avoid his child support obligations by earning less income in 2016. There was no child support claim before the court at that time. Given the time that had passed since their relationship ended, it was unlikely that the father anticipated that the mother would start a court application. He was legitimately trying to improve his earning potential. The court finds that this was a reasonable step for him to take. [ 21 ] The mother set out that the father has paid her the following amounts of child support, by year, from January 1, 2012 until June 30, 2017: 2012 - $300 2013 - $2,500

2014 - $150 2015 - $0 2016 - $250 2017 - $0 [2] [ 22 ] The father claimed that he has paid additional cash child support to the mother. He said that he paid her about $350 each month in 2014 and in 2015, $250 each month in 2016 and $300 each month in 2017. The court preferred the mother’s evidence on this issue for the following reasons:

a) She provided documentation supporting the amounts she received from the father, including copies of bank transfers.

b) The father provided absolutely no documentary evidence supporting his claim that he was paying cash to the mother between 2012 and 2017, despite the fact that he knew this was an important issue for the court to decide. While the court understands that he might not have kept receipts he could have produced bank records showing a pattern of cash withdrawals from his bank account during this period. He did not do this. Interestingly, the father claimed in cross-examination that he earned additional cash income and used this income to pay the mother. However, he did not add any cash income to his stated annual income for any year. This adversely affects his credibility.

c) The father claimed that as far back as 2014, he was having the children deliver cash to the mother. Given that the children were ages 4 and 6 at the time this seems unlikely.

d) In the

summary judgment decision, the court found that when he didn’t get his own way, the father would act in a petulant and immature manner and choose not see the children, demonstrating absolutely no insight into the emotional harm his failure to see them may cause them. The mother’s evidence that the father would not pay child support during the lengthy periods when he would refuse to see the children is consistent with this pattern of conduct. [3]

e) Until this hearing, the father was in serious non-compliance with financial disclosure orders. This does not incline the court to give him the benefit of the doubt on issues of credibility related to financial matters. [ 23 ] The father did not provide proof at this trial that he was paying child support for his other two children. In its

summary judgment decision, the court noted that the father had failed to provide any evidence of support paid to these children. His failure to provide any evidence of payments at this hearing, combined with his poor payment history in this case, casts doubt that he is paying support in accordance with Justice Clark’s order. [ 24 ] The mother claimed in her trial affidavit that she entered into an oral contract with the father in 2012 that the father was to pay her child support of $400 each month. The father denied that he ever agreed to this. [ 25 ] The mother did not meet her onus of establishing the existence of such an agreement on a balance of probabilities for the following reasons:

a) The history of the father’s payments show no correlation to any such agreement.

b) The mother led no documentary evidence supporting the existence of an agreement (for instance, a text or email exchange).

c) The mother was inconsistent about the terms of the agreement. In her application, she states that the father agreed to pay $400 each month plus 50% of child care expenses. In her trial affidavit, she says that the agreement was for the father to pay $400 each month – there is no mention of child care expenses.

d) The mother has significantly delayed in moving to enforce the purported agreement, casting doubt on its existence. [ 26 ] The father did not dispute that the mother has annually incurred gross (before taking into consideration any tax credits or benefits) child care expenses for the children as follows: 2013 - $1,440 2014 - $1,457 2015 - $1,929 2016 - $1,555 2017 - $660 [ 27 ] The mother deposed that she has annually paid for extended medical and dental benefits for the children through her employment as follows: 2013 - $2,074 2014 - $443 2015 - $448

2016 - $640 2017 - $778 [ 28 ] However, these expenses also cover the mother and her other child. The court will allocate 50% of these expenses to the children for the purpose of support calculations. [ 29 ] The mother deposed that she spent $315 for Kumon (tutoring) for one of the children in 2017. She did not have a receipt for this payment. However, the court accepts that she made the payment. [ 30 ] Subsection 7 (1) of the guidelines reads as follows: Special or extraordinary expenses 7

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (

a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (

b) that portion of the medical and dental insurance premiums attributable to the child; (

c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (

d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (

e) expenses for post-secondary education; and (

f) extraordinary expenses for extracurricular activities. [ 31 ] The court finds that the child care, medical and dental premiums and Kumon are all eligible

section 7 expenses under the guidelines and that the expenses were reasonable and necessary. [ 32 ] The court finds that the mother paid all of these expenses without additional contribution from the father. [ 33 ] The mother also claimed to have had a shortfall of medical/dental coverage for the children between 2012 and 2018 and, as a result, she incurred medical and dental expenses of approximately $1,156. She did not break these expenses down by year or provide receipts.

This claim is too vague and the court will not require the father to contribute to them. [ 34 ] The statement of arrears from the Family Responsibility Office, filed at trial, indicates that the father was $2,935 in support arrears as of January 18, 2019. The court accepts that amount as accurate. [4] Part Four – Retroactive support 4.1 Legal considerations [ 35 ] The court’s authority to make retroactive support orders is contained in clause 34 (1) (

f) of the Family Law Act . This clause reads as follows: Powers of court 34

(1) In an application under

section 33, the court may make an interim or final order, …….(

f) requiring that support be paid in respect of any period before the date of the order; [ 36 ] The Supreme Court in D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v. Henry; Hiemstra v. Hiemstra , 2006 SCC 37 outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that the court raised: 1. Whether the recipient spouse has provided a reasonable excuse for his or her delay in applying for support. 2. The conduct of the payor parent. 3. The circumstances of the child. 4.

The hardship that the retroactive award may entail. [ 37 ] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether to make a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor’s interest in certainty must be balanced with the need for fairness and flexibility.

[38] Retroactive awards are not exceptional. They can always be avoided by proper payment (D.B.S. par. 97). [39] The court should not hesitate to find a reasonable excuse for delay in the following circumstances: where the recipient spouseharbored justifiable fears that the payor parent would react vindictively to the application to the detriment of the family; where therecipient lacked the financial or emotional means to bring an application; or where the recipient was given inadequate legal advice(D.B.S., par. 101). [40] The court should take an expansive view of what constitutes blameworthy behaviour.

Blameworthy behaviour is anything thatprivileges the payor’s own interests over the child’s right to an appropriate amount of support (D.B.S., par. 106). [41] Where ordered, an award should generally be retroactive to the date when the recipient gave the payor effective notice of his orher intention to seek an increase in support payments; this date represents a fair balance between certainty and flexibility (D.B.S., par. 5). [42] Effective notice is defined as any indication by the recipient parent that child support should be paid, or if it already is, that thecurrent amount needs to be renegotiated.

All that is required is for the subject to be broached. Once that has been done, the payor can nolonger assume that the status quo is fair (D.B.S., par. 121). [43] Once the issue is raised, the recipient must still be responsible in moving the discussion forward. If he or she does not, legalaction should be contemplated. A prolonged period of inactivity after effective notice may indicate that the payor’s reasonable interest incertainty has returned.

Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into thepast (D.B.S. par.123). [44] It will not always be appropriate for a retroactive award to be ordered. Retroactive awards will not always resonate with thepurposes behind the child support regime; this will be so where the child would get no discernible benefit from the award. Retroactiveawards may also cause hardship to a payor parent in ways that a prospective award would not.

In short, while a free-standing obligationto support one’s children must be recognized, it will not always be appropriate for a court to enforce this obligation once the relevanttime period has passed. Unlike prospective awards, retroactive awards can impair the delicate balance between certainty and flexibility inthis area of the law. As situations evolve, fairness demands that obligations change to meet them. Yet, when obligations appear to besettled, fairness also demands that they not be gratuitously disrupted. Prospective and retroactive awards are thus very different in thisregard.

See: D.B.S., pars. 95 and 96); Titova v. Titov, 2012 ONCA 864, par. 37; Baldwin v. Funston, 2007 CarswellOnt 3168 (C.A.) [45] The principles set out in D.B.S., also apply to retroactive claims for

section 7 expenses. See: Smith v. Selig (2008) 2008 NSCA 54 , 56 R.F.L. (6th) 8 (NSCA); Hetherington v. Tapping, 2007 BCSC 209 (BCSC); Surerus-Mills v. Mills, [2006] O.J. No. 3839(SCJ). 4.2 Analysis Reason for delay [46] The mother provided only a partially acceptable explanation for her delay in seeking child support. [47] In her trial affidavit, the mother deposed that:

a) She was about to start an application for support in 2012 but became very ill from multiple sclerosis. She said that it took her 6months to recover.[5]

b) Any time that she would talk to the father about his inconsistent support payments, he would become angry and verbally abusiveto her in front of the children.

c) She said that the father threatened to physically harm her if she was to ever start a support application and that one time, hephysically assaulted her in front of the children.

d) She said that she was afraid for the safety of herself and the children.

e) At prior court appearances, the father tried to discourage her from seeking child support, following her to court in his car andwaiting downstairs to come upstairs with her.

f) She believes that in April, 2018, the father, or someone on his behalf, phoned the Toronto Community Housing Corporation andreported that she was committing fraud by collecting unreported child support. [48] The father denied that he engaged in the alleged improper behaviour. [49] The mother did not provide any corroboration for her claim of physical abuse, and unlike the balance of her affidavit, she failed toprovide specific details relating to her allegations of abuse and threats of physical harm.[6] The court cannot find, on a balance ofprobabilities, that the father acted in this manner, based on the evidence led at trial. [50] The mother started her second application for child support in 2014.

It was dismissed in May, 2015 when she did not attend atcourt. At trial, she did not link any of her reasons for delay to her failure to proceed with that application. [51] The court finds that the mother has been ambivalent and inconsistent in her pursuit of her claim for retroactive child support. Based on her evidence, she should have been aware by 2012, at the latest, that the father was paying inadequate child support. Sheclearly knew how to come to court as she issued applications for child support in 2008 and 2014, but chose not to pursue them.

In thiscase, she filed a notice of motion for custody and child support together with an affidavit sworn on May 2, 2018. In both of thosedocuments, she stated that she was withdrawing her claims for retroactive support and for

section 7 expenses.[7] The mother was afraid

that she would be in trouble with the Toronto Community Housing Corporation if she obtained retroactive support and that she would possibly lose her housing. [8] [ 52 ] The mother’s claim for retroactive support has been a moving target for the father. [ 53 ] However, the court has also taken into consideration that it found in the

summary judgment decision that the father can be very difficult to deal with when he doesn’t get his own way. He failed to follow court orders and the policies of the Toronto Supervised Access Centre and refused to cooperate with the Office of the Children’s Lawyer. The court wrote at paragraph 93 of its decision: The father believes that no one can tell him what to do – he should be able to see the children whenever he wants and on his terms. He states that the children are his property.

He does not respect the mother or court orders. [ 54 ] The court accepts the mother’s evidence that the father would get upset with her when she would raise the issue of support and finds that she decided at several points over the past 7 years that pursuing support just wasn’t worth the aggravation of dealing with him. The court understands the mother’s reluctance to come to court and pursue this claim, but it does not justify her seeking such a substantial retroactive award at this time. Blameworthy conduct [ 55 ] The court finds that the father has engaged in blameworthy behaviour.

He hasn’t come close to paying the appropriate amount of child support for the children and has preferred his own interests to their interests. The mother has had to shoulder an unfair burden of supporting the children. Circumstances of the children [ 56 ] The children have been disadvantaged by the father’s failure to pay proper child support. The mother has had to support the children on a tight budget. She has been limited in enrolling the children in extra-curricular activities.

She deposed that the children are artistically inclined and that she would like to enroll them in programs to foster their artistic development, but has been unable to afford to do so. Hardship [ 57 ] The court finds that the father will suffer financial hardship if the court makes a retroactive support order. He already owes support arrears of $2,935 and costs of $4,200 (although this is due to his own poor choices). He owes over $28,000 to a bank and over $11,000 in student loans. He has support obligations to his other two children that could be enforced at any time.

He is not a high-income earner – he just gets by. However, the father’s hardship can be ameliorated by permitting him to pay the support arrears over a period of time with affordable monthly payments. Conclusion [ 58 ] Balancing all of these considerations, the court finds that the mother is entitled to retroactive support and that an appropriate balancing of these factors is to start his child support obligation as of January 1, 2016. This is an 18-month retroactive support award.

The mother’s ambivalence in starting and following through with her claim, combined with the father’s difficult financial position, influenced the court not to make the retroactive award go back any further. Part Five – Calculation of retroactive support claim and credits 5.1 2016 [ 59 ] The father’s income in 2016 was $21,691. The guidelines table amount for two children at this income, in 2016, was $329 each month. [ 60 ] The court finds that the mother had the following eligible

section 7 expenses in 2016:

a) Medical expenses – $320

b) Child care expenses – $1,555 [ 61 ] The mother’s income in 2016 was $43,585. [ 62 ] Subsection 7 (2) of the guidelines sets out that the guiding principle in determining the payment of a special expense is that the expense is shared by the parties in proportion to their respective incomes. The court will not deviate from the guiding principle in this case.

It has already taken the father’s hardship into consideration in determining the start date of the retroactive support order and will also take it into consideration when determining the arrears payments. [ 63 ] A software analysis shows that the father’s proportional monthly share of special expenses in 2016 was $32. That amount will be ordered. [ 64 ] The court finds that the father paid the mother $250 for child support in 2016. He will be credited with that amount. [ 65 ] Accordingly, the father owes the mother the following for 2016:

a) Table support – 12 months x $329 = $3,948

b) Contribution to

section 7 expenses – 12 months x $32 = $384

Total support = $4,332 Less: $250 paid Amount owing for 2016: $4,082 5.2 2017 [ 66 ] The father’s income in 2017 was $40,103. This is based on his notice of assessment for that year. The guidelines table amount for two children at this income was $581 each month. [ 67 ] The court finds that the mother had the following eligible

section 7 expenses in 2017:

a) Medical expenses – $389

b) Child care expenses – $660

c) Kumon – $350 [ 68 ] The mother’s income in 2017 was $27,893. [ 69 ] A software analysis shows that the father’s proportional monthly share of special expenses in 2017 was $59. That amount will be ordered for the entire year, as the court didn’t address the issue of

section 7 expenses for the period from July 1, 2017 until December 31, 2017 in the

summary judgment decision. [ 70 ] The court finds that the father paid no child support from January 1, 2017 until June 30, 2017. [9] [ 71 ] Accordingly, the father owes the mother the following for 2017:

a) Table support – 6 months x $581 = $3,486 [10]

b) Contribution to

section 7 expenses – 12 months x $59 = $708 Total = $4,194 5.3 Total support owing [ 72 ] The total amount of additional support owed by the father to the mother for the period from January 1, 2016 is $8,276, calculated as follows: 2016 – $4,082 2017 – $4,194 Part Six- Payment of arrears [ 73 ] The court recognizes that the father has made better efforts to meet his support obligations since the

summary judgment motion was heard and that he did make some payments after March 1, 2018. [11] The court is now willing to permit the father to pay his arrears over a lengthy period of time to reduce any hardship to him. The mother proposed payment of arrears (albeit of a much larger amount) over 8 years.

The court will permit the father to pay his arrears (including the $2,935 arrears owing prior to this order) over a period of close to 6 years, provided that he keeps his payments in good standing. [ 74 ] The father will be permitted to pay his support arrears in the amount of $150 each month starting on April 1, 2019. However, if he is more than 30 days late in making any ongoing or retroactive support payment, the entire amount of the support arrears then owing shall immediately become due and payable. Part Seven – Conclusion [ 75 ] The court makes final orders as follows:

a) The father owes the mother the sum of $8,276 for additional child support, including the father’s contribution to the children’s

section 7 expenses, for the period retroactive to January 1, 2016, as calculated in this decision.

b) The Family Responsibility Office is requested to adjust their records to add these arrears to the present arrears it shows owing to the mother in its records.

c) The father will be permitted to pay his child support arrears at the rate of $150 each month starting on April 1, 2019. However, if he is more than 30 days late in making any ongoing or retroactive support payment, the entire amount of the arrears then owing shall immediately become due and payable.

d) Nothing in this order precludes the Director of the Family Responsibility Office from collecting arrears from any government source, such as HST or income tax returns, or any lottery or prize winnings.

e) A support deduction order shall issue.

f) The balance of the mother’s claim for retroactive support is dismissed.

[ 76 ] If either party finds a mathematical error in this decision, or an inputting error in the software calculations attached to this decision, they may serve and file written submissions by March 7, 2019. The other party will then have until March 14, 2019 to serve and file a written response. [ 77 ] If either party seeks their costs, they shall serve and file their written costs submissions by March 21, 2019. The other party will then have until March 28, 2019 to respond (not to make their own submissions).

The costs submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. [ 78 ] All submissions should be delivered to the trial coordinator’s office on the second floor of the courthouse. Released: February 25, 2019 _____________________ Justice S.B. Sherr