K.C. v. S.H., 2016 ONCJ 121

COURT FILE NO. D71562/14 DATE: 2016-03-09 CITATION: K.C. v. S.H. , 2016 ONCJ 121 ONTARIO COURT OF JUSTICE B E T W E E N: ) ) K.C. ) ) ) ACTING IN PERSON ) APPLICANT ) ) - and - ) S.H. ) ACTING IN PERSON RESPONDENT ) ) ) ) ) ) HEARD: MARCH 7, 2016 JUSTICE S.B. SHERR REASONS FOR DECISION Part One – Introduction [ 1 ] This trial was about the respondent’s (the father) child support obligations for the parties’ four children (the children).

[ 2 ] The applicant (the mother) asked the court to award her child support retroactive to January 1, 2012. She sought the Child Support Guidelines (the guidelines) table amount of child support for four children, based on the father’s annual income for each year. [ 3 ] The father asked the court not to award retroactive support. Part Two – Background [ 4 ] The mother is 34 years old. The father is 36 years old. [ 5 ] The parties lived together from July of 2003 until June of 2008. [ 6 ] The parties are the parents of the children.

The children are 12, 11, 9 and 8 years old. [ 7 ] The mother has custody of the children. They have always lived with her. [ 8 ] The mother married in 2011. Her husband and his son (age 9) from a prior relationship live with her and the children. [ 9 ] The mother stays at home with the children. She has not worked since 2010, when she worked as a cashier. [ 10 ] The mother’s husband works in construction and earns about $70,000 per annum. [ 11 ] The father has lived with his common-law spouse for four years. They have a 10-month-old child together.

The common-law spouse’s daughter (age 9) from a prior relationship also lives with them. [ 12 ] The father’s common-law spouse has been on maternity leave but will be returning shortly to her job at a factory. The father said that she earns about $40,000 per annum. [ 13 ] The father works in construction. He is a concrete finisher and carpenter. [ 14 ] The mother issued her claim for custody and child support on September 3, 2014. [ 15 ] The parties finalized custody of the children on January 9, 2015.

They also agreed that the father should pay temporary, without prejudice child support of $549 per month, based on the father’s annual income of $22,800 per annum. The father was in receipt of employment insurance at the time. The parties also agreed that support could be adjusted retroactively to reflect the father’s actual income. [ 16 ] The temporary child support payments are in good standing. Part Three – Evidence of the parties

[ 17 ] The mother testified that the father has paid her minimal child support. She said that he has occasionally bought clothes for the children and has shared in the cost of school lunches and school uniforms. She estimated that he paid an average of about $1,200 in each of 2012 and 2013 for these expenses. She said that in 2014 the father sometimes gave her $200 or $300, but stopped paying for school lunches and uniforms. [ 18 ] The mother said that she first broached the topic of child support with the father in either 2013 or 2014.

She said that she raised the topic four or five times, but the father always told her that he didn’t have money to pay her. She said that she accepted whatever money he gave her. She testified that it was a struggle for her and her husband to support the children without adequate child support. This motivated her to come to court. [ 19 ] The father said that he entered into a written agreement with the mother to pay her $600 per month for child support. He said that he also agreed with her to pay 50% of the cost of clothes, school lunches and school uniforms.

He did not specify when this agreement was reached and did not have a copy of the agreement. [ 20 ] The father acknowledged that he stopped paying 50% of the school uniform and lunch costs in 2014. He testified that he spends about $1,200 per annum on clothing for the children. He said that he gave the mother child support in cash of between $4,000 and $5,000 in each of 2012 and 2013 and between $2,000 and $3,000 in 2014. [ 21 ] The father testified that he works with several employers each year through his union.

He also receives employment insurance during the winter months. [ 22 ] The father produced a comparative tax

summary for the years 2012 to 2014. The parties agreed that it accurately reflected the father’s income for those years. Subsection 1 (

g) of

Schedule 111 of the guidelines provides that income should be adjusted by union dues paid. Accordingly, the following is the father’s annual income for support purposes for these years: 2012 - $67,282 less union dues of $3,574 = $63,708 2013 - $68,415 less union dues of $3,796 = $64,619 2014 - $69,760 less union dues of $4,696 = $65,064 [ 23 ] The father estimated that he earned about $55,000 in 2015. The mother accepted this figure. The father did not provide his total union dues for 2015 or 2016, so the court will use the 2014 figure of $4,696.

This means his income in 2015 for support purposes was $50,304. [ 24 ] The father is not presently working. He has applied for employment insurance. [ 25 ] The father testified said that he is paid $35 per hour as a concrete finisher and $39.64 per hour as a carpenter. He has special skills as a bridge carpenter. The father said that he is a hard worker and will take the overtime that becomes available to him. He believes that he can earn $60,000 per annum on an ongoing basis.

With union dues of $4,696 per annum, this results in an annual income of $55,304 for support purposes. [ 26 ] The father acknowledged that the mother asked him for more child support early in 2013. He was on employment insurance at the time and told her that he could not afford to pay her more money. He denied that she made any other requests for child support. [ 27 ] The father admitted that he never told the mother about how much money he was earning. Part Four – Retroactive support

4.1 Legal considerations [28] 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 37outlined the factors that a court should take into account in dealing with retroactive applications. Briefly, there are four points that thecourt 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. [29] None of the above factors are decisive or take priority and all should be considered in a global analysis. In determining whether tomake a retroactive award, a court will need to look at all of the relevant circumstances in front of it. The payor’s interest in certaintymust be balanced with the need for fairness and flexibility. [30] Retroactive awards are not exceptional.

They can always be avoided by proper payment. (D.B.S. par. 97). [31] 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). [32] 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). [33] The court should not hesitate to find a reasonable excuse for delay where:

a) The recipient spouse harbored justifiable fears that the payor parent would react vindictively to the application to the detriment ofthe family or;

b) The recipient lacked the financial or emotional means to bring an application or;

c) The recipient was given inadequate legal advice (D.B.S., par.101) [34] A court order is presumptively valid when assessing conduct. However, the larger the difference between the order and whatshould be paid, the less reasonable it becomes to rely upon it. (D.B.S., par. 65). [35] The same analysis applies to agreements, but they have less weight than orders. (D.B.S., par.78). [36] 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: Titova v. Titov, 2012 ONCA 864 , citing D.B.S, par. 95. [37] Courts should attempt to craft the retroactive award in a way that minimizes hardship.

Hardship to the payor parent may bemitigated by a judgment which allows for payment of an award in instalments: See: D.B.S. at para. 116. [38] The proper approach can therefore be summarized in the following way: payor parents will have their interest in certaintyprotected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonableup to the point when the recipient parent broaches the subject, up to three years in the past.

However, in order to avoid having thepresumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose thematerial change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthybehaviour, there is no reason to continue to protect his/her interest in certainty beyond the date when circumstances changedmaterially.

A payor parent should not be permitted to profit from his/her wrongdoing (D.B.S., par. 125). 4.2 Analysis [39] The court accepts the father’s evidence that the mother broached the topic of increasing child support early in 2013. This isconsistent with the mother’s evidence. The court will use March 1, 2013 as the date of effective notice.

[ 40 ] The court does not accept the father’s evidence that the parties entered into a written agreement that he pay the mother child support of $600 per month. The mother adamantly denied the existence of such an agreement. The father could not produce this agreement. He produced no documentation indicating that he was paying child support pursuant to such an agreement. He claimed that this agreement was reached with the assistance of the Catholic Children’s Aid Society of Toronto.

It is highly unlikely that the Catholic Children’s Aid Society of Toronto would involve itself in financial negotiations between parents. [ 41 ] The mother provided a partial explanation for her delay in applying for child support. She said that the father had been paying her minimal support since the separation and she generally accepted whatever little support he provided. She did not make any requests for financial disclosure. She did make several requests for more child support in 2013 and 2014 (as her own finances were tight), but the father claimed that he wasn’t working and couldn’t pay her any more money.

The father never disclosed to her the actual (and substantial) income that he was earning. If the mother had known his income, there is a good chance that she would have started this case much earlier. [ 42 ] The father engaged in blameworthy conduct. He did not reveal his actual income to the mother. He knew or ought to have known that the child support he was paying to her did not come anywhere close to his financial obligations under the guidelines.

Based on his annual income, he should have been paying child support of between $1,140 and $1,509 per month between 2012 and 2016. [ 43 ] The father did not even comply with the purported support agreement. He did not come close to paying the $600 per month he claimed that he had agreed to and stopped paying his share of school uniforms and lunches in 2014. The father provided feeble excuses about this, including his frustration over not having access to the children. [ 44 ] The father claimed impecuniosity whenever the mother sought more child support from him.

However, he wasn’t too financially strapped to purchase an Acura vehicle that he presently values at $24,000 and for which he claims monthly costs of $1,350 – far more than he pays for the children (the father also owns a 2005 vehicle). [ 45 ] The court believed the mother’s evidence that the father told her that the car did not belong to him (when she asked him why he couldn’t pay more support, yet could afford an expensive car). [ 46 ] The circumstances of the children were disadvantaged as the mother and her husband struggled to support them with inadequate support. [ 47 ] The father will suffer some hardship with a retroactive support order.

However, most of this hardship can be alleviated by having some portion of the arrears repaid on a periodic basis. [ 48 ] Balancing these considerations, a retroactive order is appropriate. This support order will be retroactive to March 1, 2013, the date of effective notice. Part Five – Support credits [ 49 ] The court generally preferred the mother’s evidence to the father’s. She was forthcoming and took a reasonable position. The father provided no evidence to back up his claims of support paid.

His evidence about the involvement of the Catholic Children’s Aid Society of Toronto in negotiating a written support agreement with the mother was implausible. [ 50 ] The mother acknowledged that the father paid about $1,200 per year for indirect child support in 2013. This was for clothes, school lunches and uniforms. She said that he stopped paying for the school lunches and uniforms in 2014. The father acknowledged this.

The father will be credited for $1,000 for these indirect support payments in 2013 ($100 per month for 10 months) and $600 in 2014. [ 51 ] The mother also acknowledged receiving some cash payments of $200 to $300 from the father in 2014. This is somewhat consistent with the father’s evidence that he paid her between $2,500 and $3,000 in 2014. The father will be credited with $2,500 for these payments in 2014.

[ 52 ] The father claimed that he paid the mother between $5,000 and $6,000 in cash in 2013. He provided no evidence to support this. The mother was less sure about whether the father was paying her cash payments of $200 to $300 in 2013 – she didn’t think so. She was sure that that the father didn’t give her anywhere close to $5,000. The father will be credited with cash payments of $2,500 for 2013. [ 53 ] The father has paid the mother $549 per month since January 1, 2015. He shall be credited with support paid of $6,588 in 2015 and for $1,647 paid to date in 2016.

Part Six – Calculations [ 54 ] The court accepts the father’s evidence that he should be able to earn $55,304 per annum (allowing for union dues deductions) on an ongoing basis. His historical earnings indicate that this is a conservative estimate of his future income. The father is well- established in his union. He is highly skilled and earns significant income. There is no evidentiary basis to believe that this will change. [ 55 ] The court gives little weight to the fact that the father is presently on employment insurance.

He is usually on employment insurance during the winter months. [ 56 ] The guidelines table amount for four children at this income is $1,266 per month. [ 57 ] The father’s support arrears are fixed at $35,731, calculated as follows: Support Accrued 2013 - $1,497 per month x 10 months (income $64,619) = $14,970 2014 - $1,509 per month x 12 months (income $65,064) = $18,108 2015 - $1,140 per month x 12 months (income $50,304) = $13,680 2016 - $1,266 per month x 3 months (income $55,304) = $ 3,798 Total: $50,566 Support Credits 2013 - $3,500 ($1,000 indirect payments and $2,500 direct payments) 2014 - $3,100 ($600 indirect payments and $2,500 direct payments) 2015 - $6,588 (12 months x $549 per month) 2016 - $1,647 ( 3 months x $549 per month) Total: $14,835 Balance owing: $35,731

Part Seven – Repayment of arrears [ 58 ] The father has placed himself in his present predicament due to his failure to advise the mother about his significant income and his failure to pay adequate child support. This means that he will now have to make sacrifices in his lifestyle. [ 59 ] The father will be required to pay the mother a lump sum of $10,000 towards the child support arrears within 60 days. His expensive vehicle can no longer take priority to his child support obligations. If he cannot obtain funds elsewhere, he should sell or refinance the vehicle.

If necessary, he should buy or lease a much less expensive car. He also has the option of using public transit. [ 60 ] The father will be given the opportunity to repay the balance of arrears over approximately 7 years to alleviate any hardship. The court acknowledges the reality that the father is now supporting 6 children. However, it also recognizes that the father has had the advantage of paying inadequate child support at the expense of the mother and the children for many years.

The repayment allowance granted to the father will only continue if he makes the lump sum payment set out above, when required, and maintains his ongoing and arrears support payments in good standing. [ 61 ] The father will be permitted to repay the balance of the support arrears at the rate of $306 per month. These payments will begin on June 1, 2016 (starting after his deadline for making the lump sum payment). Part Eight – Conclusion [ 62 ] A final order shall go on the following terms:

a) The father’s child support arrears are fixed at $35,731 as calculated in these reasons for decision.

b) The father shall pay the mother a lump sum of $10,000 towards these arrears within 60 days.

c) The father shall pay the balance of arrears at the rate of $306 per month, starting on June 1, 2016. However, if the father does not make the lump sum payment within 60 days, or is more than 30 days late in making any ongoing or arrears payment, the full amount of arrears 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 refunds) or from any lottery or prize winnings.

e) Based on an imputed annual income of $55,304, the father shall pay the guidelines table amount of child support for four children to the mother, being $1,266 per month, starting on April 1, 2016.

f) A support deduction order shall issue.

g) The father shall provide the mother by June 30 th of each year with complete copies of his income tax returns and notices of assessment. [ 63 ] The case will return to court on May 18, 2016 at 10:00 a.m. to review access. The parties may also speak to the issue of costs on this date.

Released: March 9, 2016 ________________________ Justice S.B. Sherr