2023 MBKB 3, 2023 MBKB 3

Date: 20230120 Docket: FD 10-01-94662 (Winnipeg Centre) Indexed as: Floyd v. Rodger Cited as: 2023 MBKB 3 COURT OF KING'S BENCH OF MANITOBA (FAMILY DIVISION) B E T W E E N: KE-TURAH JOI FLOYD, applicant, ) ) ) Appearances : KATHERINE C. MISKO ) for the applicant - and - ) ) CHRIS C. SANTOS MARCUS WILLIAM RODGER, also known as MARCO ANGELO MONACELLI, ) ) for the respondent respondent. ) ) ) ) ) CORAL LANG for the Designated Authority of Manitoba ) ) JUDGMENT DELIVERED January 20, 2023 PETERSEN J.

OVERVIEW [ 1 ] At the heart of this matter is a 14-year-old boy, for whom the mother, Ke-turah Joi Floyd, seeks child support. As the mother is a resident of the state of Oklahoma in the United States of America, and the father, Marcus William Rodger, previously known as Marco Angelo Monacelli, is a resident of Manitoba, her application for support has been made pursuant to The Inter-jurisdictional Support Orders Act , C.C.S.M. c. 160, (“the Act ”).

[ 2 ] Prior to determining the child support to be paid and the retroactive support that is owing, I must address the father’s request to set aside the registration of an Oklahoma child support order that the mother obtained, and which is contained in a Paternity Decree (“Oklahoma Order”) pronounced in the District Court in and for Canadian County in the State of Oklahoma (“Oklahoma District Court”) in 2016. In addition to ordering the father to pay child support, the Oklahoma Order made a declaration of parentage and granted the mother sole custody of the child. [ 3 ] Accordingly, the issues to be determined are:

i) Should the registration of the Oklahoma Order in Manitoba be set aside? ii) If the answer to the first issue is yes:

a) Is a declaration of parentage necessary?

b) What child support is payable, on an ongoing and retroactive basis? [ 4 ] For the reasons that follow, I have determined that the registration of the Oklahoma Order should be set aside. Further, it is not necessary for me to make a declaration of parentage as the declaration contained in the Oklahoma Order is recognized by this Court and has the same effect as if made in Manitoba. Finally, I order that the father pay ongoing and retroactive child support, both of which shall be quantified. BACKGROUND [ 5 ] The parties met in or about April 2008 while serving in the military in Greenland.

They had a brief intimate relationship. In May 2008, the mother contacted the father to advise him she was pregnant. [ 6 ] The parties’ son, Marco James Monacelli, was born on January 16, 2009. Communication between the parties ended in the fall of 2009. [ 7 ] The mother filed an Inter-jurisdictional Support Order (“ISO”) application for child support in Oklahoma in 2009 but could not proceed when the Designated Authority of Manitoba (“Designated Authority”) was unable to locate the father to serve him. A child support agency in Oklahoma investigated to no avail.

In 2012, the mother hired a private investigator in Winnipeg to locate the father but the search was unsuccessful. [ 8 ] In July 2016, the mother was advised by a family member of the father that he had changed his name to Marcus William Rodger. With this information, along with details of his employer, the mother pursued court proceedings in Oklahoma and served the father with court documents seeking paternity, custody and child support. [ 9 ] The father chose not to participate in the court proceedings in Oklahoma. As a result, a default judgment was pronounced by the Honorable Judge Gary D.

McCurdy on October 6, 2016. The Oklahoma Order declared him to be the father of Marco, granted the mother sole custody with no visitation rights to the father, and ordered child support to be payable in the sum of $222.50 USD per month commencing October 1, 2016. Further, he quantified the child support arrears as $20,581.25 USD. In addition, the father was ordered to pay his proportionate share of all uncovered medical, dental, vision and daycare/childcare expenses for Marco. [ 10 ] There was a delay in registering this Oklahoma Order with the Manitoba Court of Queen's Bench (as it then was) .

It was registered on April 4, 2019 and served on the father by the Designated Authority on April 8, 2019, pursuant to the Act . [ 11 ] The father filed a Notice of Application on May 8, 2019 to set aside the registration of the Oklahoma Order in Manitoba. At that time, the father filed an affidavit, sworn May 6, 2019, in support of his application. In this affidavit, he suggested that he is not the father of Marco. [ 12 ] The father also sought an administrative suspension of enforcement through the Manitoba Maintenance Enforcement Program (“MEP”) in July 2019.

An administrative suspension was granted on the condition that the father provide an update on the paternity test to be done. A number of further administrative suspensions were granted on the basis that the father provide written proof from the DNA Diagnostic Center that he had provided a DNA sample and to advise when the results were expected to be released. Numerous deadlines were provided for the father to provide proof of the paternity test.

None of these timelines were met by the father. [ 13 ] The father provided a number of reasons why he had been unable to proceed with the DNA testing, including that the DNA Diagnostic Center was closed due to the COVID-19 pandemic. MEP denied the father a further administrative suspension of enforcement in September 2020 upon the DNA Diagnostic Center confirming they were currently open and doing testing in the Winnipeg office.

As of September 22, 2020, MEP quantified the child support arrears as $49,093.51 CDN. [ 14 ] In light of this, the father filed a Notice of Motion on December 3, 2020 asking the Court to suspend enforcement of the ongoing child support and arrears. The father filed an affidavit, sworn December 4, 2020, in support of his motion. [ 15 ] Following a contested motion on December 8, 2020, I granted a suspension of enforcement on the following three conditions:

i) the father attend the DNA Diagnostic Center forthwith to provide his DNA for testing; ii) the father pay the balance of the monies owing to proceed with the DNA testing; and iii) the father add the mother and Marco to his account at the DNA Diagnostic Center so that Marco’s DNA could be collected to proceed with the paternity test.

[ 16 ] At the continuation of this motion on January 21, 2021, the father had not attended at the DNA Diagnostic Center to provide his DNA sample. As a result of this, I ordered enforcement of the ongoing child support payments and suspended enforcement of the arrears only. [ 17 ] In February 2021, the paternity test confirmed that the father is indeed Marco’s father.

As a result, a contested hearing was scheduled to determine the father’s application to set aside the registration of the Oklahoma Order and subsequently, to determine the child support issues. [ 18 ] The mother also filed a Petition with the Manitoba Court of Queen’s Bench in May 2021 seeking paternity, custody and child support. The mother has not taken any steps to proceed with this Petition and accordingly, it was not dealt with by me in these proceedings. ANALYSIS AND DECISION [ 19 ] I will address each of the issues to be determined.

Should the Registration of the Oklahoma Order in Manitoba Be Set Aside? [ 20 ]

Part 2 of the Act addresses the registration and enforcement of Orders made outside of Manitoba. As the Oklahoma Order contains a support order made in a reciprocating jurisdiction outside Canada but is not provisional, it is a foreign order as defined in s. 16 of the Act .

The Oklahoma Order was registered with the Manitoba Court of Queen’s Bench by the Designated Authority on April 4, 2019, and served on the father on April 8, 2019, as required (s. 17, 18 and 19(1)). [ 21 ] The father filed a Notice of Application to set aside the registration of the foreign order within 30 days of being served with it (s. 19(2)). [ 22 ] The Act confirms that: Order re registration of foreign order 19(3) On an application under subsection (2), the Manitoba court may (

a) confirm the registration; or (

b) set aside the registration if the Manitoba court determines (

i) that, in the proceeding in which the foreign order was made, a party to the order did not have proper notice or a reasonable opportunity to be heard, (ii) that the foreign order is contrary to the public policy of Manitoba, or (iii) that the court that made the foreign order did not have jurisdiction to make the order. Reasons required if court sets aside registration 19(4) If the Manitoba court sets aside the registration, it must give reasons for its decision. Jurisdiction of foreign court 19(5) For the purpose of subclause (3)(b)(iii), the Manitoba court must consider the foreign court to have had jurisdiction if the Manitoba court finds that (

a) both parties to the order were habitually resident in the reciprocating jurisdiction outside Canada; or

(

b) a party who was not habitually resident in the reciprocating jurisdiction outside Canada was subject to the jurisdiction of the court that made the foreign order under Manitoba’s conflict-of-laws rules.

Default foreign order 19(5.1) For the purpose of clause (5)(b), where the foreign order was made by default in the absence of the party referred to in that clause, the conflict-of-laws rules include a consideration of whether that party had a real and substantial connection to the jurisdiction in which the foreign order was made. [ 23 ] Although the mother and the Designated Authority consent to the father’s application to have the registration of the Oklahoma Order in Manitoba set aside, the parties’ consent alone is not sufficient to set aside the registration.

It is the duty of the Court to determine whether the registration shall be set aside. [ 24 ] I conclude that the registration of the Oklahoma Order in Manitoba must be set aside for the following reasons. The Oklahoma Order was made by default as the father, although served, did not participate in the hearing. As the father never lived in Oklahoma, under Manitoba law, the father would only be subject to that court’s jurisdiction regarding child support if he had a real and substantial connection to Oklahoma.

No evidence has been provided to suggest that the father had a real and substantial connection to Oklahoma. Although the Oklahoma District Court was clearly of the view that they had jurisdiction to make a child support order, their jurisdiction is not recognized under Manitoba law. Accordingly, I find that the Oklahoma District Court did not have jurisdiction to make a child support order against the father.

For clarification, I acknowledge and confirm that the Oklahoma District Court had jurisdiction to make an order of custody and paternity in this matter because the child’s habitual residence was Oklahoma. [ 25 ] For these reasons, the registration of the Oklahoma Order in Manitoba is set aside. Is A Declaration of Parentage Necessary? [ 26 ] The Act provides that “[i]f the parentage of a child is in issue and has not previously been determined, the Manitoba court may decide that issue” (s. 11(1)). [ 27 ] For the reasons that follow, I find that it is not necessary for me to make a declaration of parentage.

As previously noted, the Oklahoma Order contains a declaration that the father is Marco’s father. Although the father initially denied this, the paternity test has now confirmed that Mr. Rodger is Marco’s father. As a result, the parties are now consenting to a declaration of parentage. [ 28 ] The Family Maintenance Act , C.C.S.M. c. F20 , (the “ FMA ”) provides: Recognition of orders made outside Canada 27 An extra-provincial declaratory order that was made outside Canada shall be recognized and have the same effect as if made in Manitoba, if (

a) at the time the proceeding was commenced or the order was made, either parent was domiciled, (

i) in the territorial jurisdiction of the court making the order, or (ii) in a territorial jurisdiction in which the order is recognized; (

b) the court that made the order would have had jurisdiction to do so under the rules that are applicable in Manitoba; (

c) the child was habitually resident in the territorial jurisdiction of the court making the order at the time the proceeding was commenced or the order was made; or (

d) the child or either parent had a real and substantial connection with the territorial jurisdiction in which the order was made at the time the proceeding was commenced or the order was made. Exceptions

28 A court may decline to recognize an extra-provincial declaratory order and may make a declaratory order under this Act where, (

a) new evidence that was not available at the hearing becomes available; or (

b) the court is satisfied that the extra-provincial declaratory order was obtained by fraud or duress. [ 29 ] The evidence is clear that the mother and Marco live in Oklahoma within the territorial jurisdiction of the District Court that made the declaratory order. The mother, therefore, was domiciled there and it is Marco’s habitual residence. The Oklahoma District Court had jurisdiction to make this order and accordingly, I find that the declaration of parentage made in Oklahoma is recognized and has the same effect as if the Order was made in Manitoba.

It is therefore not necessary for me to make a declaration of parentage. What Child Support is Payable, on an Ongoing and Retroactive Basis? [ 30 ] The Act provides that where the registration of a foreign child support order is set aside, at the request of the party seeking child support, it shall be dealt with as if the foreign order is a support application under ss. 9(1) of the Act (s. 20(1)). Accordingly, at the request of the mother, a further hearing was scheduled to deal with her claim for child support, both ongoing and retroactive.

Timelines were set for the parties to file their affidavits and motion briefs regarding the mother’s application. [ 31 ] The Act also provides that where a support application comes before a Manitoba court from a claimant outside of the province, I must consider the evidence put before me as well as any documents forwarded by the reciprocating jurisdiction, which in this case, was the foreign order (s. 10(1)).

The mother also attached a support application under the Act to her Affidavit sworn July 15, 2021. [ 32 ] I am mindful that in determining both entitlement and the amount of child support to be paid, I must apply the law of Manitoba (s. 12(1) and (2)). The Act also provides that I may make an order that is retroactive (s. 13(2)). [ 33 ] In Manitoba, where the parties were never married, child support is governed by the FMA .

The relevant portions of the FMA provide: Obligation to support children 36(1) Each parent of a child has the obligation, … to provide reasonably for the child’s support, maintenance and education, whether or not the child is in that parent’s custody. . . . Child support order 37(1) A court may, on application by a parent, … make an order requiring a parent, … to pay for the support of any and all children of the parent. Child support guidelines apply 37(2) A court making a child support order shall do so in accordance with the child support guidelines. Terms and conditions

37(3) The court may make a child support order, prospectively or retroactively, for a definite or indefinite period or until aspecified event occurs, and may impose terms, conditions or restrictions in connection with the child support order as it thinks fit andjust. Ongoing Child Support [34] At the hearing to determine child support, the father acknowledged his obligation to pay ongoing child support for Marco. [35] There is no question that the mother is entitled to receive ongoing child support for Marco.

To calculate the ongoing childsupport, I have used the most recent financial information provided by the father which was a copy of three pay statements for 2021showing year-to-date income of $45,419.41 as of July 31, 2021. An extrapolation of this provides a total income of $77,861.00 in 2021.

Based on this income, his ongoing child support obligation for Marco is $667.40 per month, payable in installments of $333.70 on the1st and 15th day of each month, commencing January 1, 2023 and continuing until further order of the Court. [36] The father shall also be obligated to provide the mother with his annual financial disclosure by June 30th of each year, whichshall include a copy of the personal income tax return filed by him for the previous year and a copy of all notices of assessment andreassessment received from Canada Revenue Agency.

This shall commence with the father providing a copy of his 2021 and 2022financial information to the mother by June 30, 2023. Retroactive Child Support [37] The mother also seeks child support retroactive to Marco’s birth. She states that the father was given effective notice of herrequest for child support in 2008 or 2009. Alternatively, she argues that the latest the retroactive support should commence is 2016when the father was served with the application for child support that she commenced in Oklahoma.

Notwithstanding this, the motherargues that the father’s poor conduct warrants the court making a child support order retroactive to Marco’s birth. [38] The father acknowledges that there may be retroactive support owing but argues that it should only be payable from 2019, thedate that he was served with the Oklahoma Order by the Designated Authority. The father contends that there was no effective noticegiven and therefore, it is the date of formal notice that applies.

He argues that service of the Oklahoma court proceedings in 2016 cannotbe treated as formal notice as the registration of the Oklahoma Order has now been set aside and that his obligation to pay child supportshould only commence once his paternity was confirmed by DNA (February 2021). The father also argues that in balancing the needs ofthe child with the certainty and predictability sought by him, as well as the hardship that a retroactive award would have on him, hisretroactive child support obligation should be limited.

He argues that his ability to pay retroactive child support is minimal as he isbarely meeting the needs of his own family which includes his wife, who was pregnant at the time of argument, and a young daughter. [39] In D.B.S. v. S.R.G, 2006 SCC 37 , the Supreme Court of Canada confirmed that “…child support is the right of thechild; the right to support survives the breakdown of a child’s parents’ marriage …” (para. 38).

It is clear from D.B.S. that this equallyapplies to the breakdown of a child’s parents’ relationship, whether married or not. [40] In D.B.S., the Supreme Court of Canada also confirmed: - Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay supportcommensurate with their incomes (para. 2); - Retroactive awards are not confined to “exceptional circumstances” or “rare cases” (para. 5); - The child support owed will be based upon the income of the payor parent, and is not confined to furnishing the “necessities of life”(paras. 38-39); - In determining whether to make a retroactive award, “… [t]he payor parent’s interest in certainty must be balanced with the need forfairness and for flexibility …”. (para. 133). [41] The Supreme Court of Canada revisited the issue of retroactive child support in Michel v.

Graydon, 2020 SCC 24 , andColucci v. Colucci, 2021 SCC 24 . In Colucci, the court was dealing with a payor’s claim to reduce child support retroactively. In doing so, the court also summarized the principles to be applied when determining a claim for a retroactive increase in child support. Martin J. confirmed: [114] …

a) The recipient must meet the threshold of establishing a past material change in circumstances. While the onus is on the recipient toshow a material increase in income, any failure by the payor to disclose relevant financial information allows the court to impute income,strike pleadings, draw adverse inferences, and award costs. There is no need for the recipient to make multiple court applications fordisclosure before a court has these powers.

b) Once a material change in circumstances is established, a presumption arises in favour of retroactively increasing child supportto the date the recipient gave the payor effective notice of the request for an increase, up to three years before formal notice of the

application to vary . In the increase context, because of informational asymmetry, effective notice requires only that the recipient broached the subject of an increase with the payor.

c) Where no effective notice is given by the recipient parent, child support should generally be increased back to the date of formal notice .

d) The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors continue to guide this exercise of discretion, as described in Michel . If the payor has failed to disclose a material increase in income, that failure qualifies as blameworthy conduct and the date of retroactivity will generally be the date of the increase in income.

e) Once the court has determined that support should be retroactively increased to a particular date, the increase must be quantified.

The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines . [emphasis added] [ 42 ] Although Colucci dealt with a retroactive variation of an existing child support order, I find that the principles enunciated by Martin J. regarding the determination of a presumptive date of retroactivity are equally applicable when making a retroactive award for an initial child support order, with the exception of not having to find a material change in circumstance (see D.B.S. ).

Presumptive Date of Retroactivity [ 43 ] As set out in Colucci , the presumptive date of retroactivity is the date that the recipient requested child support from the payor. If, however, the recipient delays pursuing the claim, then the presumptive date is limited to three years prior to the date of formal notice, which is the date the father was served with a court application for child support. [ 44 ] Applying these principles to the case at hand, I accept the mother’s evidence that she raised the issue of child support with the father in 2009 .

By doing so, she gave the father effective notice of her request for child support. [ 45 ] This is supported by an exchange of Facebook messages between the parties in October 2009. The mother messaged the father stating, “It’s Friday I want to know what you have decided how you plan to handle this situation.” The father responded by saying, “I am waiting to see a lawyer. Please wait a couple more days, I need to get a few things set up before I make a decision. Thank you”.

For clarification, all text and/or Facebook messages referred to in this decision are reproduced verbatim. [ 46 ] The mother states that it was after this exchange of messages that she lost contact with the father and thereafter, was unable to contact or locate him.

Her subsequent messages to the father went unanswered. [ 47 ] The mother proceeded to file an application for child support, pursuant to the Act , in 2009 but was unable to locate the father to serve him and as a result, formal notice of that application was not provided to the father. [ 48 ] When the father’s whereabouts became known to the mother in 2016, she filed for child support in Oklahoma. The father was served with a Summons and Petition for Paternity on July 28, 2016. I find this to be the date formal notice was provided to the father.

Three years prior to this would make the presumptive date of retroactivity July 28, 2013. [ 49 ] I do not accept the father’s argument that the 2016 service on him cannot be viewed as formal notice because the registration of the Oklahoma Order has now been set aside. In my view, the outcome has no bearing upon the notice it provided to the father.

Upon being served with the Summons and Petition, the father was clearly made aware of the mother’s court application for child support and therefore, received formal notice of her request for child support. [ 50 ] Accordingly, I find that the mother provided the father with effective notice that she was seeking child support for Marco in October 2009.

As formal notice did not occur until July 2016, the presumptive date of retroactivity is limited to three years prior to the formal notice, which is July 2013. [ 51 ] Having found that the presumptive date of retroactivity is July 2013, I must now consider if there is any reason to warrant using a different date for calculating retroactive child support. As previously set out, in para. 114 of Colucci , Martin J. confirmed that “[t]he court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair.

The D.B.S. factors continue to guide this exercise of discretion, as described in Michel . …” [ 52 ] The D.B.S. factors to be considered in determining whether to exercise my discretion to use a date other than the presumptive date are:

i) The reasons for the delay; ii) Conduct of the payor; iii) Circumstances of the child; and

iv) Hardship. I will address each of these factors. Reasons for the Delay [ 53 ] The father argues that the mother delayed in proceeding without a reasonable excuse. He contends that despite changing his name, the mother could have reached him had she wanted to because he did not change any of his contact information. Alternatively, the father argues that she could have acquired his contact information from his family members with whom she had ongoing contact following his change of name.

The father also argues that there was an unreasonable delay in the mother filing the Oklahoma Order in Manitoba. [ 54 ] The mother asserts that she has been diligent in her attempts to locate the father and any delay in pursuing child support was a direct result of her inability to locate him because he changed his name. [ 55 ] If the father did not change his contact information in or about October 2009, as he suggests, why did the father not respond to the mother’s subsequent messages to him about “his decision”? No responses were provided by the father.

If none of his previous contact information changed, why was the Designated Authority not able to serve the father with the ISO application between May and November 2010? A search for the father by an Oklahoma child support agency also failed to locate him. If the mother had contact information for the father, there would have been no reason for her to hire a private investigator to locate him in 2012. There also would have been no reason for her to ask his family members for his contact information.

As a result of all the unsuccessful attempts to communicate with and locate the father, including searches by independent professional third parties, I do not accept that the father’s contact information remained unchanged. [ 56 ] The mother’s evidence confirms that she asked both the father’s mother (“paternal grandmother”) and his brother, Mike, for contact information for the father. Both indicated that they were unable to provide her with this information.

In a message from the paternal grandmother dated June 8, 2011, she states “Im sorry Big Marco since you last visited us, he has shut us out completely…”. [ 57 ] The evidence confirms that the father’s brother, Mike, was also unwilling to provide the father’s contact information to the mother. A message from Mike to the mother in November 2010 states: Hi Joy! I would have you as a facebook friend, I just don’t want my brother to feel like I’ve betrayed him though. I sorry, I don’t think it would be a good choice on my behalf. It would be nice if you guy’s could talk things out and come to an peaceful agreement.

I saw the pictures of little Marco, He’s a little cutie, looks like a tanned Marco. lol. Well, I hope you are well, take care. [ 58 ] The following further exchange between Mike and the mother in October 2011 confirms her failed attempt to seek contact information for the father: Mother: I was wanted to call Marco do u have his number?? Mike: I don’t think I am aloud to even tell him we are talking. Ah, I feel stuck in a position that could be sewnsitive. I wish I could, really. Mother: Well I’m trying to contact him how can I do that? Mike: I’ll tell him you contacted me. I’ll msg him now.

Mother: Thank you [happy emoji] please ask him if I could call him to talk [winking emoji] Mike: What will you have me convey? (: [smiling emoji] Mother: Well just that I want to talk to him and see if anything has changed. Just trying to fix the divide if I can. Just everything I’ve shared with u on the topic Mike: I’m sorry Joi. Marco is not ready. I think he feels threatened that we are communicating. If you ever get a hold of him please refrain from saying we were talking, I’m not sure how well that would pan out, I know he would feel betrayed. I was trying to do the right thing.

I have to cut this connection for now, but will try and help out with Marco, again please speak nothing of this if you ever speak to Marco as he would feel betrayed. I enjoyed talking with you, it’s been fun but I have to cut this contact as it is complicated, I wish I knew how to fix this. I wish you and little Marco all the best. Take care. [ 59 ] It is clear from the evidence that the father cut his ties with anyone who chose to have contact with the mother and his son. This

may have been a strategy to preclude the mother from obtaining his contact information. Mike’s messages clearly reflect that he did not want the father to know that he was communicating with the mother because it would upset the father. [ 60 ] There was a delay in registering the Oklahoma Order in Manitoba. The mother obtained the court order in Oklahoma in 2016 but it was not registered until 2019. The mother’s uncontroverted evidence is that there was difficulty getting the foreign order registered in Manitoba because of the discrepancy in the father’s name.

I accept that the difficulty getting the Manitoba court to register this Order stems from the father’s decision to change his name. The mother should not be faulted for this delay as it is a direct result of the actions taken by the father. [ 61 ] Any other delay in the mother pursuing court proceedings stems directly from the father’s decision to change his name unbeknownst to the mother. She, in fact, proceeded with an application for child support, pursuant to the Act , in 2009, right after the last communication with the father.

The only reason that court application did not proceed was that no one could locate the father in order to serve him with the court documents. Again, I find that the mother should not be faulted for this. [ 62 ] The mother continued to pursue this matter by seeking to obtain contact information from the father’s immediate family with whom she had contact. She hired a private investigator in 2012 to attempt to locate the father. Upon obtaining his new identity, the mother immediately proceeded with a court application in Oklahoma and the father was served with a Summons in those proceedings.

As a result of the foregoing, I find that the mother was diligent in her continued attempts to proceed with a child support application and that the delay that occurred in proceeding was a result of the father’s actions, not the mother’s. Conduct of the Payor [ 63 ] Based on the evidence before me, I find that the father changed his name to avoid the mother’s request for child support and the obligation he knew he had.

Although the father states that he changed his name to honour his grandfather, I do not accept this explanation as the timing of his change of name coincided with the mother’s request for child support. It is clear from the evidence that the father used a variety of surnames over the years which appear to have been done, on at least one occasion, to attempt to avoid a debt obligation.

The fact that the father changed his entire name (first name, middle name and surname) immediately following an exchange of messages wherein the father asked for more time to allow him to speak with a lawyer and “get a few things set up before [he makes] a decision”, leads to my finding that the father changed his name specifically to avoid his child support obligation to his son.

At the very least, the father’s actions of changing his name and contact information were the direct cause of the mother’s inability to locate him, which led to her inability to proceed with the court application for child support. [ 64 ] I find the father’s conduct not only to be blameworthy but egregiously so. The father was well aware of Marco’s birth and existence.

He had ongoing communications with the mother for 10 months following Marco’s birth. [ 65 ] Although the father sought a paternity test upon being served with the Oklahoma Order in 2019, there is evidence that the father previously acknowledged, or appeared to accept, that he was Marco’s father. In a message to the mother in October 2008, he stated “…I told my family.” This appears to have been a reference to telling his family about the upcoming birth. He also messaged the mother on January 13, 2009 to say “Hey, I talked to your sister, she told me you’re being induced on wed at 3. I won’t be able to make it.

I hope everything goes well.” It is unlikely that the father would have considered attending the birth of a baby that he did not believe was his child. [ 66 ] In a subsequent message exchange dated March 27, 2009, the father provided the mother with his medical history. This is not information that would likely be provided if the father did not believe that the child was his. [ 67 ] Subsequently, in March 2009 the issue of a DNA test was referenced in a message between the parties. This occurred just months before the father changed his name.

He may have raised the paternity issue to delay the mother in pursuing her claim for child support. [ 68 ] I am not persuaded by the father’s argument that the child support order should only be retroactive to the date his paternity was confirmed by the DNA test, which was February 2021. The Oklahoma District Court found him to be Marco’s father in 2016. The father chose not to participate in those proceedings despite having been served.

There is also no evidence that the father took any steps to set aside the declaration of parentage made in Oklahoma. [ 69 ] The father’s paternity of Marco existed from the child’s birth whether he believed he was the father or not. A father’s skepticism of paternity does not alleviate him from his financial obligation to support a child that he, in fact, fathered. Although proof may be required to confirm paternity, it does not affect a child’s right to be supported by his parent or a parent’s obligation to support his child.

To suggest otherwise would encourage fathers wanting to avoid paying child support to question paternity and delay obtaining DNA testing, which is what the father did in this case. This clearly is not in a child’s best interest and is not a public policy that should be encouraged. Circumstances of the Child [ 70 ] No substantive evidence was provided with respect to the circumstances of Marco or the mother. As Colucci confirms retroactive awards are not confined to “exceptional circumstances” or providing the “necessities of life”, the circumstances of Marco are less significant.

It is clear that the mother was left to support Marco on her own until recently. [ 71 ] The FMA provides that parents have an obligation to support their children and that the court, in making a child support order, may do so retroactively and shall do so in accordance with the Child Support Guidelines Regulation , Regulation 58/98 (“ CSG ”). The CSG were formulated and legislated in 1997 to provide a more uniform level of support to children nationally based on their parents’ income. This is confirmed in the objectives set out in the CSG which state: 1 The objectives of these guidelines are

(

a) To establish a fair standard of support for children that ensures that they benefit from the financial means of both parents; . . . (

d) to ensure consistent treatment of parents and children who are in similar circumstances. Accordingly, as the father did not pay any child support for Marco for most of his life, Marco has not had the benefit of the financial support that he ought to have received from his father. This is an important consideration that should be weighed in determining the retroactive child support to be paid. Hardship [ 72 ] The father argues that a retroactive child support order will create a hardship for him, primarily because he has a family whom he is required to support.

He argues that his income barely meets the financial needs of his present family and that he does not have sufficient monies to pay retroactive child support. [ 73 ] Although I appreciate that a retroactive child support award may be disruptive to the father’s finances, it is an obligation that he has been, or should have been, aware of for the last 14 years. The father’s actions taken to avoid this very obligation have now caught up with him and it is time for him to meet that obligation on both an ongoing and retroactive basis.

The time has come for the father to budget his finances to support all of his children. This must include Marco. [ 74 ] Upon considering all of these factors, I am of the view that using the presumptive date of July 2013 will result in an unfair outcome. Had the father not changed his name and contact information in October 2009, the mother would have been able to proceed with her application for child support in late 2009. Accordingly, I am prepared to exercise my discretion to order child support retroactive to October 2009, the date that the mother raised the issue of child support with the father.

It is my view that this date of retroactivity will provide the fairest outcome in the circumstances. Quantifying the Retroactive Support [ 75 ] In order to calculate the retroactive child support owing, I must determine the father’s income for each year and calculate the applicable quantum of child support payable based on his income and the Manitoba Table of the CSG . There have been three adjustments to the quantum of child support to be paid under the CSG Tables since its inception.

These adjustments occurred on May 1, 2006 (the “2006 CSG Tables”), December 31, 2011 (the “2011 CSG Tables”), and November 21, 2017 (the “2017 CSG Tables”). Accordingly, in calculating the retroactive child support to be paid, I must use the CSG Table that was in existence at the time the support ought to have been payable. [ 76 ] In calculating the child support to be paid, all monetary amounts listed hereafter are provided in Canadian funds. [ 77 ] In 2009, the father ceased serving in the military. He has been employed in a variety of positions since that time.

I have determined the father’s income for each year based on the financial information he provided.

This included a copy of his notices of assessment for 2009 to 2018, inclusive, a copy of a portion of his 2019 and 2020 income tax returns and three pay statements for 2021. [ 78 ] Based on the father’s income and the applicable CSG Table, I have calculated his child support obligation for each year as follows: Year Father’s Income CSG Table Monthly Child Support Annual Child Support Details 2009 $ 51,520.00 2006 $ 440.63 $ 1,321.89 October to December 2010 $ 60,429.00 2006 $ 519.82 $ 6,237.84 2011 $ 56,951.00 2006 $ 489.46 $ 5,873.52 2012 $ 40,663.00 2011 $ 329.23 $ 3,950.76 2013 $ 40,514.00 2011 $ 327.83 $ 3,933.96 2014 $ 48,185.00 2011 $ 395.70 $ 4,748.40 2015 $ 57,174.00 2011 $ 476.53 $ 5,718.36 2016 $ 66,160.00 2011 $ 558.47 $ 6,701.64 2017 $ 73,378.00 2011 2017 $ 619.25 $ 629.10 $ 6,811.75 $ 629.10 January to November December 2018 $ 82,355.00 2017 $ 706.05 $ 8,472.60 2019 $ 79,880.00 2017 $ 685.39 $ 8,224.68 2020 $ 76,461.00 2017 $ 655.78 $ 7,869.36 2021 $ 77,861.00 2017 $ 667.40 $ 8,008.80 2022 $ 77,861.00 2017 $ 667.40 $ 8,008.80

$ 86,511.46 [ 79 ] The total retroactive child support to be paid to the mother is $86,511.46. The father has paid some monthly child support since these proceedings commenced and has had monies garnished by MEP. At the date of this hearing, the total payments made or garnished totaled $27,965.12.

The father shall receive credit for these payments and all other child support payments made by him or garnished by MEP to date. [ 80 ] The remaining retroactive child support owing, along with the ongoing child support, shall be payable through MEP. [ 81 ] The remaining retroactive child support owing shall be payable at a rate of $400.00 per month, payable in installments of $200.00 each on the 1st and 15th of each month, commencing January 1, 2023.

In future, if MEP is no longer enforcing the ongoing table amount of child support (because the child is no longer eligible for ongoing support), then the monthly payments being paid toward the retroactive child support shall be increased to $800.00 per month, payable in installments of $400.00 each on the 1st and 15th of each month, commencing the first month after the ongoing table amount of child support ceases.

These payments shall be in addition to MEP maintaining a Federal Garnishing Order. [ 82 ] The father proposed that the retroactive child support, or a portion thereof, be paid by transferring his Locked-in Retirement Account (“LIRA”) to the mother. The Designated Authority confirmed that this may be possible. The mother is prepared to accept monies from the father’s LIRA provided that the LIRA monies will be accessible by her in order to use the monies to support Marco. The father’s LIRA account is approximately $54,267.57 gross.

It is uncertain what amount may be available from the LIRA, net of income tax, to be applied against the retroactive child support that is owing. [ 83 ] Based on the parties’ positions and the information provided by the Designated Authority, I am prepared to make an order that MEP may attach monies from the father’s LIRA and apply them to the retroactive child support owing to the mother. MEP shall also be entitled to maintain a Federal Garnishing Order against the father. CONCLUSION [ 84 ] For the reasons set out above, there shall be a Final Order as follows:

i) The registration of the Oklahoma Order in Manitoba, which was pronounced October 6, 2016 by the Honorable Judge Gary D. McCurdy, is set aside; ii) The declaration of parentage contained in the Oklahoma Order is recognized and shall have the same effect as if made in Manitoba; iii) The father shall pay the mother ongoing child support for Marco in the sum of $667.40 per month, payable in installments of $333.70 each on the 1st and 15th of each month, commencing January 1, 2023; iv) The father shall pay the mother retroactive child support of $86,511.46 less any child support payments already made or garnished by MEP;

v) The retroactive child support shall be payable as follows:

a) By payments of $400.00 per month, payable in installments of $200.00 each on the 1st and 15th of each month, commencing January 1, 2023 and continuing until the retroactive support is paid in full. If MEP, in future, ceases to enforce the ongoing table amount of child support, then the monthly payments being paid toward the retroactive child support shall be increased to $800.00 per month, payable in installments of $400.00 each on the 1st and 15th of each month, commencing the first month after the ongoing table amount of child support ceases;

b) MEP may attach monies from the father’s LIRA account and shall apply them to the retroactive support owing to the mother; and

c) MEP may maintain a Federal Garnishing Order and any funds realized from that process shall be applied to the retroactive support until paid in full. vi) The father shall provide the mother with his annual financial disclosure by June 30 th of each year, which shall include a copy of the personal income tax return filed by him for the previous year and a copy of all notices of assessment and reassessment received from Canada Revenue Agency, commencing with a copy of his 2021 and 2022 income information by June 30, 2023. [ 85 ] To ensure the record is clear, I would ask the Designated Authority to forward a copy of this Judgment to the reciprocating jurisdiction. [ 86 ] Costs may be spoken to if the parties cannot agree. __________________________ J.