Cole v. Freiwald and Freiwald, 2011 ONCJ 395

Toronto (North York) Registry No. D1366/95 DATE: 2011·VII·28 CITATION: Cole v. Freiwald and Freiwald, 2011 ONCJ 395 ONTARIO COURT OF JUSTICE BETWEEN: ROBERTA COLE, Applicant, — AND — ROLAND FREIWALD and TRACY FREIWALD, Respondents. Before Justice Marvin A.

Zuker Heard on 2 and3 March 2011; and 2 and 15 June 2011 Reasons for Judgment released on 28 July 2011 SUPPORT ORDERS — Entitlement — Child — Older child — Enrolment in full-time education programme — Full-time programme— Policy of educational facility — 2 years ago, father of girl (now 22-year-old college student who had not withdrawn from “parental”control of custodial grandmother) made motion to terminate child support and to rescind child support arrears — Under order made 15years ago, father was to have supervised access to daughter at grandmother’s home once he submitted to random alcohol and drug testingfor 3-month interval but he chose not to attend for testing or to provide any test results and stopped seeing his daughter thereafter — Hehad made no support payments during past 13 years, except for income tax refunds and GST money that Director of FamilyResponsibility Office managed to intercept through garnishment — At that time, he had quit his job because Toronto-Hamilton commuteto work was too long and he wanted to start his own business, which he never did because of alleged disability (bi-polar, mood disorder,major depression and chronic pain) — On motion to terminate ongoing support, father argued that his daughter was enrolled in whatshould be 4-year college program that she was completing in 5 years and that therefore, she was not enrolled in “full time program ofeducation” as required by subsection 31(1) of Family Law Act, although college registrar in written letter seemed to have regarded childas full-time student — Court pointed to case law that adopted flexible approach to decide what is full-time program of education —Court accepted that educational institutions’ policy of what constitutes full-time enrolment is not determinative of the issue, but it wascertainly one of many factors for court to consider — Court found that girl was full-time student and therefore entitled to ongoing childsupport.

SUPPORT ORDERS — Variation — Form of order sought — Discharge, variation or suspension of arrears — Grounds — Payor’sintentional under-employment or unemployment — 2 years ago, father of girl (now 22-year-old college student who had not withdrawnfrom “parental” control of custodial grandmother) made motion to terminate child support and to rescind child support arrears — Underorder made 15 years ago, father was to have supervised access to daughter at grandmother’s home once he submitted to random alcoholand drug testing for 3-month interval but he chose not to attend for testing or to provide any test results and stopped seeing his daughterthereafter — He had made no support payments during past 13 years, except for income tax refunds and GST money that Director ofFamily Responsibility Office managed to intercept through garnishment — At that time, he had quit his job because Toronto-Hamiltoncommute to work was too long and he wanted to start his own business, which he never did because of alleged disability (bi-polar, mooddisorder, major depression and chronic pain) — On motion to rescind arrears, father claimed inability to pay as result of alleged medicalproblems for past 13 years — More recently, father was briefly in receipt of municipal welfare and then, less than year ago, began toreceive provincial disability pension — Under 3-part test in Drygala v.

Pauli, (Ont. C.A.):

(1) Overwhelming evidence was that father has been intentionally under-employed who admitted that, since quitting his job, he hasnot applied for any jobs and had no intention to do so.

(2) Once under-employment is established, onus shifted to payor to prove that his under-employment was reasonably justified, buthe failed to do so — His excuse was medical disabilities — But for proof, he relied on evidence of his family physician whoadmitted in court that he had no specialized training in mental health issues, chronic pain issues or back pain issues — Courtconcluded that family doctor was not qualified to make such diagnoses and noted that father did not see psychiatrist, painspecialist or physiotherapist — He has not followed up on medical advice provided to him nor did he use reasonable efforts toaddress whatever medical limitations he might have had — Court had chance to observe father in court and could see no outwardindication of any physical or mental disability.

(3) If payor failed to meet onus in test (2), court had to decide quantum of income to be imputed to him — It was not enough forfather merely to show accumulation of arrears and current inability to pay them — Onus was on him to show change incircumstances at time that arrears had accrued that affected his ability to pay when support payments had became due — Hisearnings may have meagre in those years but he had ability during relevant years to be more aggressive and industrious — Underthose conditions, court should not modify outstanding court order, unless payor shows that he could not and would not in futurebe able to pay those arrears — Court found that, up until 5 years ago (date of some event, significance of which was not revealedin reasons), father had ability to pay and court therefore refused to rescind arrears — Court’s decision in this regard wasinfluenced by enormous unexplained delay in starting these proceedings and his failure to make any voluntary payments towardschild support — Any hardship could be addressed by means of a reasonable plan to pay off arrears by instalments — As of 5years ago, father’s own evidence indicated that court should impute minimum wage of $21,300 per year, producing monthlytable amount of support of $182 to terminate effective date that father began to commenced receiving disability pension.

STATUTES AND REGULATIONS CITED Age of Majority and Accountability Act, R.S.O. 1990, c. A-7 [as amended]. Child Support Guidelines, O. Reg. 391/97 [as amended], paragraph 14¶1,

section 16,

section 19, clause 19(1)(a),

section 21, subsection21(1), subsection 21(2) and

Schedule III. Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3 [as amended]. Family Law Act, R.S.O. 1990, c. F-3 [as amended],

section 29,

section 31, subsection 31(1), subsection 31(2),

section 37, subsection37(2.1), subsection 37(2.2), subsection 37(2.3), subsection 37(2.4), subsection 37(2.5), subsection 37(2.6) and subsection 37(3). Substitute Decisions Act, 1992, S.O. 1992, c. 30 [as amended]. CASES CITED Beninger v. Beninger, 2009 BCCA 145, 269 B.C.A.C. 56, 99 B.C.L.R. (4th) 72, 453 W.A.C. 56, 78 R.F.L. (6th) 37, [2009] B.C.J. No.638, 2009 Cars​well​BC 818 (B.C.C.A.). Blake v. Blake, , 8 R.F.L. (5th) 233, [2000] O.J. No. 2670, 2000 Cars​well​Ont 2477 (S.C.J.). Bonthron v. Bonthron (2004), 128 A.C.W.S. (3d) 118, [2004] O.J. No. 103, 2004 Cars​well​Ont 96 (Ont. S.C.). Brown v.

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McDermott v. McDermott, 2004 BCSC 59, 128 A.C.W.S. (3d) 555, [2004] W.D.F.L. 208, [2004] B.C.J. No. 67, 2004 Cars​well​BC 70(B.C.S.C.). McNulty v. McNulty, , 28 R.F.L. (6th) 233, [2005] O.J. No. 5199, 2005 Cars​well​Ont 7001 (Ont. S.C.). Nelson v. Nelson, 2005 NSSC 5, 14 R.F.L. (6th) 26, [2005] N.S.J. No. 18, 2005 Cars​well​NS 18 (N.S.S.C.). Oxley v. Oxley, 2010 ONSC 1609, 85 R.F.L. (6th) 435, [2010] O.J. No. 1355, 2010 Cars​well​Ont 1987 (Ont. Fam. Ct.). Quintal v. Quintal, , 73 A.C.W.S. (3d) 484, [1997] O.J. No. 3444, 38 O.T.C. 68, 1997 Cars​well​Ont 3213 (Ont. Fam.Ct.). Riel v.

Holland, , 67 O.R. (3d) 417, 177 O.A.C. 162, 232 D.L.R. (4th) 264, 42 R.F.L. (5th) 120, [2003] O.J. No. 3901,2003 Cars​well​Ont 3828 (Ont. C.A.). Rilli v. Rilli, , 151 A.C.W.S. (3d) 1130, [2006] O.J. No. 4142, 2006 Cars​well​Ont 6335 (Ont. Fam. Ct.). Sullivan v. Sullivan (1999), 126 O.A.C. 292, 50 R.F.L. (4th) 326, [1999] O.J. No. 3973, 1999 Cars​well​Ont 3340 (Ont. Div. Ct.). Vohra v. Vohra, 2009 ONCJ 135, 66 R.F.L. (6th) 216, [2009] O.J. No. 1446, 2009 Cars​well​Ont 1860 (Ont. C.J.). Whelan v. O’Connor, , 28 R.F.L. (6th) 433, [2006] O.J. No. 1660, 2006 Cars​well​Ont 2581 (Ont. Fam. Ct.). Wilson v.

Wilson, , 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 Cars​well​Ont 3838 (Ont.S.C.). AUTHORS AND WORKS CITED McLeod, James G.: “Annotation to Sullivan v. Sullivan” 50 R.F.L. (4th) at 326. Lisa R. Baumal ............................... counsel for the applicant maternal grandmother, Roberta Cole Barbara J. Thurston .......................................... counsel for the respondent father, Roland Freiwald

No appearance by or on behalf of the respondent mother, Tracey Freiwald [ 1 ] JUSTICE M.A. ZUKER:— On or about 16 June 2009, Roland Freiwald, father of Shannon Freiwald, born on 12 January 1989, brought a motion to change a final order of Provincial Judge Heather L. Katarynych, dated 14 May 1998, more specifically, to terminate child support, for rescission of child support arrears, and custody of and access to Shannon. [ 2 ] Roberta Cole is the maternal grandmother of Shannon. Shannon is a student at the Ontario College of Art and Design University. [ 3 ] Freiwald is Shannon`s father.

Tracey Freiwald is Shannon`s mother and the daughter of Roberta Cole. Freiwald and Tracey were married on 13 December 1988, and separated when Shannon was very young. [ 4 ] In accordance with the final order of Provincial Judge Russell J. Otter, dated 2 December 1996, Tracey Freiwald and Ms. Cole obtained joint custody of Shannon, Shannon having her primary residence with Ms. Cole. [ 5 ] After the order on 14 May 1998, Mr.

Freiwald never paid child support, other than income tax refunds and GST money garnished by the Family Responsibility Office (“FRO”). [ 6 ] The respondent claims that Shannon is not a dependant and is not entitled to support. He seeks to terminate the child support order for Shannon. He also seeks to rescind all the arrears that have accrued. [ 7 ] Freiwald asks that the court note Tracey Freiwald in default. The Public Guardian and Trustee for the Province of Ontario is the statutory guardian of property for Mrs. Freiwald pursuant to the Substitute Decisions Act, 1992 , S.O. 1992, c. 30, as amended.

The Public Guardian and Trustee did not formally respond to this case on Mrs. Freiwald’s behalf. Kathleen Barry, staff counsel for the Public Guardian and Trustee, has advised, by way of correspondence to counsel, entered as exhibit 25, that the Public Guardian and Trustee considers Tracey Freiwald to have no interest in this matter. [ 8 ] Freiwald submits that Shannon has not been a dependant under the Family Law Act , R.S.O. 1990, c. F-3, as amended (the “Act”), since she completed her second year of studies at OCAD University. In her first year of studies, she obtained 5.0 credits.

In the second year of studies, she obtained 4.5 credits. In her third year, this dropped to 3.0 credits. In her fourth year, she obtained 4.0 credits. With respect to the letter from Mr. Dao, which was entered as an exhibit, it indicates 20.0 credits are generally needed over the course of four years to obtain a bachelor’s degree. He argues that Shannon is behind that pace by 3.5 credits. He submits that Ms.

Cole’s entitlement to receive child support for Shannon ended on 13 May 2008, the day before his support payment would have come due for the following month. [ 9 ] With respect to the issue of Freiwald’s arrears, he submits that, with the exception of two years, 2001 and 2002, he has had no ability to pay child support since this support order was made. He was in receipt of Ontario Works in the amount of $571 per month, from 19 February 2010 to 25 August 2010. Since then, he has been in receipt of the Ontario Disability Support Program (ODSP) in the amount of $934 per month. [ 10 ] Dr.

Klodas, Freiwald submits, indicated that Freiwald may have bi-polar, mood disorder, major depression and chronic pain. Dr. Klodas testified that Freiwald’s mental health symptoms were first reported to him in 1986. Dr. Klodas testified that Freiwald suffers from chronic pain arising from a congenital fusion of his lumbar spine, which pain can be triggered by injury or repetitive movements. [ 11 ] In terms of the support owing, Freiwald submits that he has overpaid child support in the amount of $3,414.78.

Calculation shows Freiwald’s income for each year, the monthly table amount payable under the Child Support Guidelines , O. Reg. 391/97, as amended, in effect as of that time and the annual amount payable. The total support payable was $3,528. As of 10 February 2011, he had paid $6,942.78 for an overpayment of $3,414.78. [ 12 ] Freiwald submits that the child support order for Shannon, dated 14 May 1998, be terminated and that all arrears that have accrued pursuant to this order be rescinded and that Ms. Cole be ordered to pay Freiwald the sum of $3,414.78 for overpayment of child support. [ 13 ] Ms.

Cole served and filed a response to the motion to change on or about 16 July 2009, asking that the relief sought by Freiwald in his motion to change be dismissed with costs payable on a full-recovery basis. [ 14 ] It is the applicant’s position that income should be imputed to the respondent in the amount of $37,500.00, an income that Freiwald was capable of earning and that no rescission of any arrears should be considered. [ 15 ] It is the applicant’s position that Freiwald has not met the threshold to establish there has been a material change in circumstances to justify a change in support. [ 16 ] The relief sought in Freiwald’s motion to change of 4 December 2009 should therefore be dismissed. [ 17 ] Support for Shannon should terminate on 30 May 2012, when she completes her Bachelor of Arts degree.

In the alternative, that it terminate on 30 May 2011, which would have been if she had completed it in four years instead of five. In the alternative, it would be that support for Shannon should terminate when Freiwald was accepted for ODSP. [ 18 ] The applicant submits that the support arrears remain and the court put into place a payment plan of $100 or $200 a month or that payment of these arrears be suspended. The suspension of the arrears would continue in place until one of the following events occurs:

1. Freiwald is no longer on ODSP as a result of his no longer qualifying for ODSP. 2. Freiwald obtains employment or self-employment. 3. Freiwald obtains income from other sources aside from ODSP. 4. Freiwald inherits money or obtains any other source of windfall. At that time, when one of these circumstances occurs, either the suspension or the small payment plan can be revisited. [ 19 ] The applicant seeks an order that Freiwald provide copies of his income tax returns and notices of assessment and any other disclosure required by

section 21 of the guidelines by 30 May of each year commencing on 30 May 2011. [ 20 ] The applicant seeks an order that Freiwald repay her the $1,000 owing to her as costs from Judge Katarynych’s order dated 14 February 1998, plus accumulated post-judgment interest. [ 21 ] The applicant submits that Freiwald is not entitled to seek a retroactive adjustment of support prior to the bringing of his motion on 16 June 2009, given the fact that the order of Judge Katarynych, dated 14 February 1998, came to his attention that very day. [ 22 ] The applicant submits that Freiwald is deliberately under-employed. [ 23 ] The applicant submits that the court should not terminate or reduce child support for Shannon, unless Freiwald has been able to adduce substantial evidence indicating that Shannon is able to financially support herself. [ 24 ] Tracey Freiwald was diagnosed with manic-depression when she was 21 years of age.

Tracey suffered a severe manic episode when Shannon was born and Shannon was placed with Ms. Cole by the York Region Children`s Aid Society. Shannon has lived exclusively with either Tracey or Ms. Cole since her birth as a result of Tracey`s mental health issues. Shannon has lived with Ms. Cole from 22 September 1995 to the present. [ 25 ] In accordance with paragraphs 5 and 7 of the final order dated 2 December 1996, Freiwald was immediately to submit to random alcohol and drug testing for three months and sign a consent to release of information.

Once he commenced the drug testing, he was to have supervised access with Shannon at her house, supervised by Ms. Cole. He did not attend for drug and alcohol testing or provide his testing information. He stopped visiting Shannon shortly thereafter. [ 26 ] Freiwald has primarily been self-employed in the renovation business. He was working for Top Quality Residential at the time of the order of 14 May 1998, earning $37,500.00 per year. He served and filed a financial statement sworn on 9 February 1998 to this effect. [ 27 ] Freiwald failed to attend the hearing scheduled on 14 May 1998.

His application and motion were dismissed. He was ordered to pay child support of $325.00 per month, based on his declared annual income of $37,500.00 set out in his financial statement and to pay costs of $1,000.00. [ 28 ] Freiwald entered into an arrangement with FRO, in current default proceedings in 2009, to pay $325.00 per month in ongoing child support, plus $100.00 a month against his arrears. He paid $425.00 in June 2009 but failed to make any additional support payments in July, August, September or October. He paid $1,275.00 on 25 October 2009. [ 29 ] Freiwald has not paid the $1,000.00 cost order.

Freiwald submits that the respondent Tracey Freiwald never assigned her interest in these costs to Ms. Cole. The costs order was to be paid jointly to Ms. Cole and Tracey Freiwald. [ 30 ] The respondent denies that he was working for Top Quality Residential and earning $37,500.00 at the time of the order of Judge Katarynych of 14 May 1998.

However, his financial statement, sworn on 9 February 1998, indicated that the respondent earned $3,100.00 a month in pay, wages, salary and that his employer’s name was Top Quality Residential. [ 31 ] The respondent stated he was not working with Top Quality Residential in February 1998. He stated that he left Top Quality Residential in the period October to December 2007. [ 32 ] He claims he left Top Quality Residential because the commute to work in Hamilton was too lengthy and he wanted to start his own business.

He voluntarily unemployed himself. [ 33 ] He stated he has been unemployed full time since 2006 but was self-employed and carrying on his own business. He also claims that he has been disabled from working. [ 34 ] He claims that he owes his mother $17,000.00 but has provided no particulars or proof of any purported loan. [ 35 ] The respondent denies that he is paying his child support. His financial statement has reflected child support payments of $425.00 a month. [ 36 ] Dr.

Klodas, a family physician, in a letter dated 8 March 2010, stated that the respondent has been disabled from work for several years. [ 37 ] The respondent saw a psychiatrist, Dr. Alterescu on 29 October 2009, after he commenced the proceedings herein. [ 38 ] The respondent advised Dr. Birdi, a psychiatrist, on 25 September 2009, that he had not worked since 2005 because of back problems. [ 39 ] The respondent told Dr. Klodas on 10 December 2009 that he had been disabled from working since 2006 because of chronic pain and depression according to the medical report of Dr. Klodas dated 10 December 2009.

[ 40 ] According to Freiwald’s financial statement, sworn on 12 March 2010, the respondent owns three older vehicles worth some $4,200.00. [ 41 ] The respondent states that, since 19 February 2010, he has been receiving social assistance from the City of Toronto in the amount of $571.00 per month, being $350.00 per month for a shelter allowance and $221.00 per month for basic needs. He says his diagnoses include bipolar mood disorder, major depression, chronic pain, chronic anxiety and social phobia. [ 42 ] He submits that both Dr. Klodas and Dr.

Alterescu expressly take the position that he is unable to work and Dr. Klodas further takes the position that he has been unable to work for several years. [ 43 ] The applicant, as indicated, is the maternal grandmother of Shannon Freiwald. Shannon attends the Ontario College of Art and Design University and is in her fourth year of a five-year program. This includes a four-year undergraduate program leading to a degree of Bachelor of Fine Arts. [ 44 ] Shannon attends school full time and works part-time during the school year and during the summer.

Her income tax returns provided to the respondent support that she earns minimal income. 1: THE EVIDENCE OF Dr. S.M. KLODAS [ 45 ] Dr. Klodas gave evidence with respect to Freiwald. In particular, see tabs 36, 27 and 38 of exhibit 3 filed herein. [ 46 ] Dr. Klodas has been a certified family physician since 1971. Freiwald has been his patient for some 35 years. Freiwald’s mother has also been his patient. In his letter dated 8 March 2010 (tab 36, exhibit 3), Dr. Klodas states in the last paragraph: Freiwald has been suffering from Bipolar Mood Disorder, major depression and chronic pain.

He has been disabled from work for several years. He requires psychiatric treatment, prolonged psychotherapy, and skilled pain management. . . . [ 47 ] Dr. Klodas acknowledged in cross-examination that he has had no special training for mental health issues, inter alia . [ 48 ] Dr. Klodas, in his letter dated 20 July 2010 (tab 37), states in part: With passing time, his working ability continued to decline. Depression and chronic back pain eventually made him completely disabled by the end of 2005. He has remained disabled since . . . Dr.

Klodas further acknowledged that Freiwald has not seen any orthopaedic surgeon since seeing Dr. Kosinski on 13 January 1986, nor has he been referred for physical physiotherapy. Further: Only increasing dose of Oxycodone could bring his daily functioning to minimally tolerable level . . . [ 49 ] Pursuant to exhibit 7, a medical report provided to Service Canada, Dr. Klodas wrote on 10 December 2009: Chronic pain and depression making him disabled from work since 2006, poor response to treatment, poor prognosis. [ 50 ] Freiwald’s income from 1998 to 2010 inclusive is set out in exhibit 3.

In particular, his income from 2001 to 2005 inclusive ranged from $28,544.35 to $43,814.00. Freiwald grossed $28,673.00 in 1999 and $16,855.00 in 2007. Other years reported and filed show income in amounts less than $11,000.00. He states that he is presently on ODSP and his T5007 for 2010 (tab 24, exhibit 3) indicates an income of $9,338.00. It was not until 2009 that Freiwald sought to set aside the order of 14 May 1998. [ 51 ] Freiwald acknowledged owing the City of Durham some $53,000.00 as a result of fraud relating to social assistance.

He pleaded guilty in 1999 and went to jail for nine months, from 29 September 1999 until 29 March 2009. He went to Germany thereafter as a family guest. See exhibit 15 filed herein. [ 52 ] Exhibit 28 is a letter of Le Dao, Records Assistant, Office of the Registrar Ontario College of Art and Design, dated 9 February 2011, which states: This will confirm that Shannon Freiwald is registered at OCAD University from September 2007 to April 2010 and is currently registered full time for the 2010/2011 fall and winter semester, September 7, 2010 to April 21, 2011.

Upon successful [completion] of her program requirements, Ms. Freiwald will be eligible to graduate in the spring of 2012 with a Bachelor of Fine Arts degree in Integrated Media. Ms. Freiwald intends to complete additional courses for a minor before graduation. [ 53 ] Freiwald indicated that he last worked on a full-time basis, self-employed, in November of 2005. And since that time, he is worked as casual labourer for a total of 32 days. His ODSP application indicated that he has been totally disabled since 24 November 2005. [ 54 ] Dr.

Klodas indicated that he did not make referrals for pain treatment for Freiwald and, therefore, on Freiwald’s behalf. Counsel on behalf of Freiwald submits that he should not be held responsible for his inability to earn income arising from an addiction to pain medication, when the medication was prescribed by his physician, Dr. Klodas. [ 55 ] Freiwald gave evidence that he went to the courthouse that day and he knew that day about the order. He waited from 14

February 1998 to 16 June 2009, more than 11 years. At no time, from 14 February 1998 to 16 June 2009, when he served Ms. Cole withhis materials, did he do anything to notify Ms. Cole of any change in his financial circumstances. [56] The applicant submits that there is no evidence that he is disabled from working as a result of depression, chronic pain orback pain. There is evidence that he had low testosterone levels, which he did try to treat, but no evidence that his low testosterone levelswere disabling in any way whatsoever. [57] Dr.

Klodas gave evidence that he has no specialized training in the areas of dealing with patients with mental healthissues, chronic pain issues or back pain issues. Dr. Klodas is not qualified to make such a diagnosis. [58] Freiwald did not see a psychiatrist. He did not go to a pain specialist.

He did not go for physiotherapy. [59] Subsection 37(2.1) of the Family Law Act permits a court to vary child support retroactively, assuming that the personseeking the variation is able to establish that there has been a material change in circumstances since the last order was made. [60] Counsel for the applicant submits that the principles of D.B.S. v. S.R.G.; Laura Jean W. v. Tracy Alfred R.; Henry v.Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61 Alta. L.R. (4th) 1, 377 W.A.C. 297,[2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J.

No. 37, 2006 Cars​well​Alta 976, (hereinafter referred to as“D.B.S. v. S.R.G.”), do apply in cases where someone is seeking a retroactive downward variation of support. [61] She further submits that a payor-parent cannot be permitted to profit from his or her wrongdoing. The court could gobackwards three years but, in this case, there is more than adequate blameworthy conduct to move that date forward. [62] The applicant argues that Freiwald’s conduct should not be rewarded.

Any hardship that he has experienced in paying hisarrears is self-imposed and can be alleviated by either ordering a reasonable monthly payment plan or a suspension of the arrears untilthere is a change of his circumstances. [63] Freiwald’s present monthly income is $976. He allegedly pays $350 a month in rent to his mother. 2: THE LAW [64] In Vohra v. Vohra, 2009 ONCJ 135, 66 R.F.L. (6th) 216, [2009] O.J. No. 1446, 2009 Cars​well​Ont 1860 (Ont. C.J.),Justice Stanley B. Sherr stated that a flexible approach should be adopted to determine what is a full-time program of education.

Theflexible approach allows the determination to be made of a child’s aptitudes and abilities. [65] The basis for this approach is found in the Divisional Court decision of Sullivan v. Sullivan (1999), 126 O.A.C. 292, 50R.F.L. (4th) 326, [1999] O.J. No. 3973, 1999 Cars​well​Ont 3340. In that case, the child, who was the plaintiff, was 22 years old and, byreason of her serious illness, was physically able to complete only one or two university courses in a year. This was not considered to be“full-time” by the university.

However, on the basis of the child’s illness and the opinions of her treating doctors, the court held thechild was enrolled in a full-time program as required by subsection 31(1) of the Family Law Act. [66] In his “Annotation” of this case, Professor James G. McLeod wrote that the: . . . reasons for judgment in Sullivan v. Sullivan should be approached with caution. Although thecourt’s decision to uphold support for a sick/disabled adult who is not self-sufficient appears fair andreasonable, it ignores the clear words of the Family Law Act, R.S.O. 1990, c. F.3. . . .

Over the past few years, it has become increasingly clear that courts are not particularly troubled by thewords of the relevant legislation in child-support cases. However, this appears to be the first time thatan appeal court has simply ignored the words of the legislation and the existing case law to reach whatit considers a fair result. [67] Despite these comments, many cases suggest that the educational institutions’ policy of what constitutes full-timeenrolment is not determinative of the issue. See Cava v. Cava, , 139 A.C.W.S. (3d) 904, [2005] O.J. No. 2316,[2005] O.T.C. 430, 2005 Cars​well​Ont 2287 (Ont.

S.C.), at paragraph [35]. It is only one of many factors for the court to consider. [68] In Wilson v. Wilson, , 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 Cars​-well​Ont 3838 (Ont. S.C.), Justice Thomas A. Heeney considered what full-time enrolment meant by analysing the line of cases thatadopted the straightforward (that is, Professor McLeod’

s) approach and the line of cases that adopted the flexible approach. Heconcluded that

section 31: (

a) is intended to ensure that parents support their children while they are fully engaged in their education, and (

b) should be strictly construed for the benefit of children. [69] On this basis, he adopted the flexible approach and held that: [19] . . . A child can be found to be enrolled in a full time program of education while taking lessthan a full course load, so long as his or her participation was meaningful and consistent with theprogram's purposes and objectives. [70] There is a line of cases that holds that full-time enrolment is not enough to trigger entitlement. Not only must he or she beenrolled full time, but the child owes a duty to pursue his or her education in meaningful and diligent fashion. See Figueiredo v.

Figueiredo, , 33 R.F.L. (3d) 72, [1991] O.J. No. 953, 1991 Cars​well​Ont 278 (Ont. Gen. Div.), at paragraph [75]; Giessv. Upper, , 28 R.F.L. (4th) 460, [1996] O.J. No. 5600, 1996 Cars​well​Ont 5243 (Ont. Fam. Ct.); and McNulty v.McNulty, , 28 R.F.L. (6th) 233, [2005] O.J. No. 5199, 2005 Cars​well​Ont 7001 (Ont. S.C.). The educational programmust be for a legitimate purpose with the child making a genuine effort at completing it. [71] In McNulty v. McNulty, supra, Justice Peter H.

Howden gives as the rationale for this view the following: [11] The purpose of the obligation to provide support extending into a child’s adult years is toreinforce parental responsibility for the education of their children beyond the age of majority. Readingthis

section as a whole, the legislative intent of parental support is to provide and continue to providesupport for a child who is pursuing an educational program and remains dependant on the parent whilehe/she has not completed their education. . . . [72] However, there is another line of cases that does not require a “standard of devotion, priority and effort” to full-timeenrolment as a condition of entitlement. See Copeland v. Copeland, [1993] W.D.F.L. 122, 6 O.F.L.R. 148, 12 L.W.C.D. 486, [1992]O.J. No. 2677, 1992 Cars​well​Ont 3533 (Ont. Gen.

Div.). [73] Subsection 31(1) of the Family Law Act says that every parent has an obligation to provide support for his or herunmarried child who is a minor or is enrolled in a full-time program of education to the extent that that parent is capable is doing so. And subsection 31(2) says that the obligation does not extend to a child who is 16 years of age or older and has withdrawn from parentalcare. [74] Once the child obtains the age of majority, defined as 18 years according to the Age of Majority and Accountability Act,R.S.O. 1990, c.

A-7, as amended, the parent is obliged to provide support if the child is enrolled in a full-time program of education andhas not withdrawn from parental control. Shannon has not withdrawn from parental control. Ms. Thurston submits that Shannon is not infull-time attendance. [75] In Johnston v. Johnston, , 87 B.C.A.C. 133, 29 B.C.L.R. (3d) 362, 143 W.A.C. 133, 26 R.F.L. (4th)131, [1997] B.C.J. No. 418, 1997 Cars​well​BC 270 (B.C.C.A.), Appeal Justice Jo-Ann E.

Prowse, while generally rejecting delay aloneas a factor to consider in an application to rescind arrears of child support, said as follows: [26] There is, however, some authority for the proposition that the Court will consider delay as afactor in assessing the issue of reduction or cancellation of arrears of maintenance if the payor is able toshow that the delay has prejudiced him in some material way. [76] I find the reasons given by the respondent for the non-payment of support lacking. Although his earnings appear meagrein some years, he had the ability to be more aggressive and industrious.

He has provided the court with no acceptable explanation to thecontrary. I had the opportunity to observe Freiwald during these proceedings. Certainly from a physical perspective, Freiwald showedno outward indication of any physical or mental disability. [77] The law requires that it must be demonstrated, on the balance of probabilities, that the payor cannot and will not in thefuture be able to pay the arrears. [78]

Section 37 of the Family Law Act provides that an application to vary an order for child support may be made by a parentof a dependant named in the order to be varied. “Dependant” is defined in

section 29 of the Act as a person to whom another has anobligation to provide support under

Part III of the Act.

Section 31 of the Act establishes the obligation of a parent to support a child. [79] The test to be applied on a motion to change a child support order under the Act, and the powers of the court on such amotion, are set out in subsections 37(2.1) to 37(3). [80] As set out in subsection 37(2.1) of the Act, a change in circumstances within the meaning of the Child SupportGuidelines is one of the grounds to support a change in a child support order.

Paragraph 14¶1 of the Child Support Guidelines providesthat, where the amount of child support set out in the order includes a determination made in accordance with the tables under theguidelines, any change in circumstances that would result in a different order for the support of the child constitutes a change that givesrise to the making of a variation order. [81] Subsection 37(2.1) of the Act authorizes the court to vary a child support order retroactively. A number of considerationsapply when a party requests child support, or upward adjustments of child support, on a retroactive basis.

The Supreme Court of Canadacomprehensively addressed how retroactive child support claims should be handled in D.B.S. v. S.R.G., supra. [82] Child support is the right of the child that arises upon the child’s birth and exists independent of any statute or courtorder. It survives the breakdown of the parents’ relationship. [83] Child support should, as much as possible, provide children with the same standard of living they enjoyed when theirparents were together.

The amount of child support owed will vary based upon the income of the payor parent. [84] Subsection 21(2) of the Child Support Guidelines requires a respondent parent in child support proceedings to provide thecourt and the applicant with the financial disclosure referred to in subsection 21(1) of the guidelines within thirty days of being servedwith the originating documents relating to the proceedings. [85] In ascertaining whether a change in circumstances has occurred for the purposes of a motion to change child support, thecourt must consider whether the alleged change was “significant and long lasting; whether it was real and not one of choice.” See Brownv.

Brown, 2010 NBCA 5, 353 N.B.R. (2d) 323, 910 A.P.R. 323, 315 D.L.R. (4th) 293, 76 R.F.L. (6th) 33, [2010] N.B.J. No. 18, 2010Cars​well​NB 30 (N.B.C.A.); and Haisman v. Haisman, 1994 ABCA 249 , , 157 A.R. 47, 22 Alta. L.R. (3d)

56, 77 W.A.C. 47, 116 D.L.R. (4th) 671, 7 R.F.L. (4th) 1, [1994] A.J. No. 553, 1994 Cars​well​Alta 179 (Alta. C.A.); permission to appealto the Supreme Court of Canada refused at Haisman v. Haisman, [1995] 3 S.C.R. vi, 195 N.R. 159n, 181 A.R. 79n, 32 Alta. L.R. (3d)xliv, 116 W.A.C. 79n, 15 R.F.L. (4th) 51n, [1995] S.C.C.A. No. 86. Where the payor has been unable for relatively short periods of timein the past to make child support payments as they come due, this does not constitute a change in circumstances that meets the thresholdfor initiating a variation proceeding. See Haisman v.

Haisman, supra. [86] The powers of the court on an application to change a child support order or adjust outstanding arrears of child supportunder subsection 37(2.1) are broad. The court can change the terms of the order, either prospectively or retroactively, but can alsosuspend or discharge the order, either in whole or in part and on either a prospective or retroactive basis.

The court’s authority withrespect to arrears is similarly broad and includes the power to rescind the arrears and interest either entirely or in part, or to reduce theamount of arrears payable. [87] The respondent has based his claim for a rescission or reduction of child support arrears on changes in his income. It istherefore necessary to ascertain whether there has in fact been a change in his income since that time. [88]

Section 16 of the Guidelines provides that the starting point for the determination of annual income is the sources ofincome set out under the heading “total income” in the T1 General form issued by the Canada Revenue Agency. The total of thesesources of income is then adjusted in accordance with

Schedule III under the Guidelines.

Section 16 does not mandate using theprevious year’s total income as set out in the T1 General form for the previous year as a basis for determining ongoing child support. Rather, the goal is to ascertain current income based on the sources set out in the T1 form. See Coghill v. Coghill, ,30 R.F.L. (6th) 398, [2006] O.J. No. 2602, 2006 Cars​well​Ont 5069 (Ont. S.C.). [89] Where a party’s prior year’s income is not predictive of what they are likely to earn in the upcoming year, the courtshould determine the party’s Guidelines income for the upcoming twelve months from when child support will be paid.

See Nelson v.Nelson, 2005 NSSC 5, 14 R.F.L. (6th) 26, [2005] N.S.J. No. 18, 2005 Cars​well​NS 18 (N.S.S.C.); Kimla v. Golds, , 13R.F.L. (6th) 214, [2005] O.J. No. 1015, 2005 Cars​well​Ont 1000 (Ont. S.C.); Bonthron v. Bonthron (2004), 128 A.C.W.S. (3d) 118,[2004] O.J. No. 103, 2004 Cars​well​Ont 96 (Ont. S.C.); and Lemmon v. Lemmon, , 129 A.C.W.S. (3d) 561, [2004] O.J.No. 738, 2004 Cars​well​Ont 771 (Ont. S.C.). [90] The Guidelines provide that the court may impute income to a party in appropriate circumstances. The relevant

section ofthe Guidelines is

section 19. [91] The Ontario Court of Appeal has held that, in determining whether to impute income on the basis that a party isintentionally under-employed or unemployed pursuant to clause 19(1)(

a) of the Guidelines, it is not necessary to establish bad faith or anattempt to thwart child support obligations. A parent is intentionally under-employed within the meaning of this

section if he or sheearns less than he or she is capable of earning, having regard for all of the circumstances. In determining whether to impute income onthis basis, the court must consider what is reasonable in the circumstances. The factors that the court should consider include the age,education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party couldreasonably earn if they worked to capacity. See Drygala v. Pauli, , 61 O.R. (3d) 711, 164 O.A.C. 241, 219 D.L.R.(4th) 319, 29 R.F.L. (5th) 293, [2002] O.J. No. 3731, 2002 Cars​well​Ont 3228 (Ont.

C.A.); Lawson v. Lawson, , 81O.R. (3d) 321, 214 O.A.C. 94, 29 R.F.L. (6th) 8, [2006] O.J. No. 3179, 2006 Cars​well​Ont 4789 (Ont, C.A.). [92] In determining a party’s capacity to earn income, the principles which the court should consider include the following: • There is a duty on the part of the payor actively to seek out reasonable employment opportunities that will maximize his orher income potential so as to meet the needs of his or her children. See Le Page v. Porter and Matthews Manor Inc., , 7 R.F.L. (5th) 335, [2000] O.J. No. 2574, 2000 Cars​well​Ont 2487 (Ont. Fam.

Ct.). • The court will not excuse a party from his or her child support obligations or reduce these obligations where the party haspersisted in unremunerative employment or where he or she has pursued unrealistic or unproductive career aspirations. Aself-induced reduction of income is not a basis upon which to avoid or reduce child support payments. See Hanson v.Hanson, , 92 A.C.W.S. (3d) 1024, [2000] B.C.W.L.D. 234, [2000] W.D.F.L. 119, [1999] B.C.J. No.2532, 1999 Cars​well​BC 2545 (B.C.S.C.); and Le Page v.

Porter and Matthews Manor Inc., supra. • If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of thecircumstances, and may impute an income if it determines that the decision was not appropriate having regard for theparent’s child support obligations. See Lawson v. Lawson, supra; and Blake v. Blake, , 8 R.F.L. (5th)233, [2000] O.J.

No. 2670, 2000 Cars​well​Ont 2477 (S.C.J.). [93] When a parent experiences a sudden change in income, he or she may be given a “grace period” to adjust to the changeand seek out employment in his or her field at a comparable remuneration before income will be imputed to him or her. However, ifunable to secure comparable employment within a reasonable timeframe, the parent will be required to accept other less remunerativeopportunities in order to satisfy his or her obligation to contribute to the support of his or her children. See Barta v. Barta, , 136 A.C.W.S. (3d) 333, [2005] O.J.

No. 69, 2005 Cars​well​Ont 74 (Ont. S.C.); McDermott v. McDermott, 2004 BCSC 59, 128A.C.W.S. (3d) 555, [2004] W.D.F.L. 208, [2004] B.C.J. No. 67, 2004 Cars​well​BC 70 (B.C.S.C.); and Quintal v. Quintal, , 73 A.C.W.S. (3d) 484, [1997] O.J. No. 3444, 38 O.T.C. 68, 1997 Cars​well​Ont 3213 (Ont. Fam. Ct.). [94] Where a party fails to provide full financial disclosure relating to him or her income, the court is entitled to draw anadverse inference and to impute income to him or her. See Daulby v. Daulby, , 162 A.C.W.S. (3d) 633, [2007] O.J.No. 4737, 2007 Cars​well​Ont 7842 (Ont.

S.C.). [95] The amount of income that the court imputes to a parent is a matter of discretion. The only limitation on the discretion ofthe court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute. See Korwin v.Potworowski, 2007 ONCA 739, 43 R.F.L. (6th) 1, [2007] O.J. No. 4117, 2007 Cars​well​Ont 6852 (Ont. C.A.).

[96] Once a moving party has met the threshold of establishing that there has been a change in circumstances within themeaning of subsection 37(2.1) of the Family Law Act, or that evidence that was not available at the time the order was made is nowavailable, the issue is whether a retroactive change to rescind arrears or reduce the amount of support payable is justified in the context ofthe changed circumstances. See DiFrancesco (Couto) v. Couto, , 56 O.R. (3d) 363, 155 O.A.C. 32, 207 D.L.R. (4th)106, [2001] O.J. No. 4307, 2001 Cars​well​Ont 3858 (Ont. C.A.). [97] In the Alberta case of Haisman v.

Haisman, supra, the Alberta Court of Appeal dealt with two appeals that raised issuesrespecting the reduction and rescission of child support arrears. In one of the appeals, the court found that there had not been a change inthe payor’s circumstances during the time that the arrears had accumulated and that the payor was requesting a rescission or reduction ofarrears based on his current inability to pay. In the second appeal, the court found that there had been a change in circumstances, in thatthe child had resided with the payor for a period of time. [98] In Haisman v.

Haisman, the court concluded that a request to reduce or rescind child support arrears is essentially arequest to vary an existing child support order and that, under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, as amended, thepreliminary issue to be determined in such a variation proceeding is whether there has been a change in the condition, means, needs orother circumstances of either former spouse or of any child of the marriage for whom support is or was sought.

The court set out thefollowing principles respecting the reduction or rescission of arrears in both types of situations that were before the court: • In the absence of special circumstances, a judge should not vary or rescind an order for the payment of child support so as toreduce or eliminate arrears unless the judge is satisfied on a balance of probabilities that the payor cannot then pay or will not atany time in the future be able to pay the arrears.• Where the payor can establish a change in circumstances during the period when arrears were accumulating that rendered him orher unable for a substantial period of time to make the child support payments as they came due, this situation may constitute a“special circumstance” that allows the court to consider exercising its discretion to grant relief to the payor.

In thesecircumstances, the court may suspend enforcement of the support order during the time when the payor was unable to pay, orretroactively decrease the amount of child support owed during that time and reduce the arrears owing accordingly.

The court didnot elaborate on the factors that it should consider in determining how to exercise its discretion. [99] The mere accumulation of arrears and current inability to pay child support arrears, without evidence of a change incircumstances while the arrears accumulated that affected the payor’s ability to pay when the support came due, is not a change incircumstances that will meet the threshold requirement for a variation application and is not, in and of itself, a special circumstance thatwill justify a rescission or reduction of arrears of child support.

This situation may, however, justify a suspension of enforcement inrelation to the arrears for a limited time, or an order providing for periodic payments on the arrears. [100] Where the payor cannot establish a change in circumstances during the time that the arrears accumulated that affected hisor her ability to pay, evidence that the recipient agreed to non-payment of the support is irrelevant. [101] Delay on the part of the child support recipient, even a long delay, in enforcing the child support obligation, is not relevantin a proceeding to reduce or rescind child support arrears and does not, in and of itself, constitute a waiver of the right to claim arrears. [102] Shortly following the Supreme Court of Canada’s decision to refuse leave to appeal in Haisman v.

Haisman, the OntarioCourt of Appeal addressed the factors that the court should consider when a moving party seeks to reduce or eliminate child supportarrears in Filipich v. Filipich, , 92 O.A.C. 319, 26 R.F.L. (4th) 53, [1996] O.J. No. 3081, 1996 Cars​well​Ont 3263 (Ont.C.A.). In that case, the court was asked to consider whether all or part of child arrears that had accumulated under a decree of divorcecould be cancelled and, if so, whether there was a rule precluding the enforcement of child support arrears beyond one year.

It wasunclear from the court’s decision whether the support payor was asking that arrears be cancelled on the basis of a change incircumstances during the time that the arrears accumulated or whether he was asking the court to cancel the arrears on the basis ofcurrent inability to pay. The court held that there was no “one-year rule” respecting the enforcement of child support, but concluded thatthe court had a discretion to restrict the extent to which it would enforce payment of child support arrears.

It found that there was nofixed formula for determining how this discretion should be exercised but concluded that the relevant factors included those set out in theOntario High Court decision in Gray v. Gray (1983), (ON SC), 32 R.F.L. (2d) 438, [1983] O.J. No. 2313, 1983 Cars​-well​Ont 258. [103] In Gray v. Gray, supra, the child support payor who was requesting a cancellation of arrears was able to pay when thearrears accumulated, but simply refused to do so.

The court held that, in this type of situation, the court should typically give effect tothe outstanding court order, unless there are compelling reasons not to do so. [104] The cases of Gray v. Gray, supra, Filipich v. Filipich, supra, and DiFrancesco (Couto) v. Couto, supra, were decidedbefore the Supreme Court of Canada addressed the test to be applied in proceedings initiated for retroactive child support and retroactiveincreases to child support in the case of D.B.S. v. S.R.G., supra. [105] The question has arisen whether the principles that the Supreme Court of Canada established in D.B.S. v.

S.R.G., supra,also apply in cases where the moving party seeks a retroactive reduction of child support or rescission of arrears. The principles havebeen applied in these circumstances in Malleye v. Brereton, 2007 ONCJ 216, 172 A.C.W.S. (3d) 995, [2007] O.J. No. 1871, 2007 Cars​-well​Ont 3037 (Ont. C.J.); and Houston v. McAdam, 2008 NLUFC 39, 282 Nfld. & P.E.I.R. 202, 868 A.P.R. 202, [2008] N.J. No. 393,2008 Cars​well​Nfld 370 (N.L.U.F.C.), affirmed at Houston v McAdam, 2009 NLCA 24, 284 Nfld. & P.E.I.R. 268, 875 A.P.R. 268,[2009] N.J. No. 84, 2009 Cars​well​Nfld 82 (N.L.C.A.). [106] In Brown v.

Brown, supra, the New Brunswick Court of Appeal held that the factors that the Supreme Court of Canada setout in D.B.S. v. S.R.G., supra, do not apply in cases where a retroactive reduction or rescission of arrears is sought on a motion to changea child support order. The court found that the Supreme Court had held in D.B.S. v.

S.R.G. that the policy considerations of certainty andpredictability that formed the basis of the four factors to consider when dealing with retroactive claims for support and increased supportdo not come into play when dealing with claims to reduce support retroactively or rescind arrears. In support of this conclusion, the New

Brunswick Court of Appeal quoted the decision of Justice J.E. Michel Bastarache, for the majority. [98] Before canvassing the myriad of factors that a court should consider before ordering aretroactive child support award, I also want to mention that these factors are not meant to apply tocircumstances where arrears have accumulated. In such situations, the payor parent cannot argue thatthe amounts claimed disrupt his/her interest in certainty and predictability; to the contrary, in the case ofarrears, certainty and predictability militate in the opposite direction.

There is no analogy that can bemade to the present cases [of retroactive increases in child support]. [107] The differential treatment accorded to variation cases that seek a retroactive increase in support and those that seek aretroactive decrease in support could be justified on the basis that the latter do not involve a request that a party pay or repay money thatthey may or may not have at the time of the variation proceeding.

In proceedings to reduce child support retroactively, or to reduce orrescind arrears, once a material change in circumstances is established, the only question is whether retroactive and ongoing relief areappropriate in light of that change. [108] In D.B.S. v. S.R.G., the court was not called upon to address the applicable principles in cases where the moving partyrequests a retroactive reduction of child support, or rescission or reduction of arrears, and therefore the court did not engage in acomprehensive analysis of this issue. [109] In D.B.S. v.

S.R.G., Justice Bastarache, speaking for the Supreme Court of Canada, made it clear that payors must notarrange their financial affairs so as to prefer their own interests over those of their children.

Indeed, a payor will engage in blameworthyconduct “even where a payor parent does nothing active to avoid his/her obligations . . . if (s)he consciously chooses to ignore them.” (At paragraph [107]). [110] The onus again is on a recipient to establish that a payor is intentionally unemployed and may be very easy to meet incircumstances where the payor voluntarily leaves one job and takes a replacement job earning much less income. In these situations, theonus will shift to the payor whose decision “needs to be justified in a compelling way.” See Riel v.

Holland, , 67 O.R.(3d) 417, 177 O.A.C. 162, 232 D.L.R. (4th) 264, 42 R.F.L. (5th) 120, [2003] O.J. No. 3901, 2003 Cars​well​Ont 3828 (Ont. C.A.), atparagraph [23]. However, where the payor’s employment income is involuntarily terminated or reduced, the onus will be much morechallenging for a recipient to meet. Suspicions of bad faith are not enough. See Dabrowska v. Bragagnolo, 2008 ONCJ 360, 170A.C.W.S. (3d) 376, [2008] O.J. No. 3155, 2008 Cars​well​Ont 4763 (Ont. C.J.). Reductions in income that arise from market forces willnot qualify as voluntary reductions in income. See Oxley v.

Oxley, 2010 ONSC 1609, 85 R.F.L. (6th) 435, [2010] O.J. No. 1355, 2010Cars​well​Ont 1987 (Ont. Fam. Ct.). [111] In many cases, it is a relatively easy task to determine the appropriate income to impute. If the payor has behavedunreasonably in leaving a particular place of employment and there is evidence of his income at the time he or she left, the court willsimply impute income in the same amount to the payor. This was the approach taken in Oxley v. Oxley, supra. Mr. Oxley hadvoluntarily reduced his income alleging that he was required to do so as a result of his health.

The court held that he had not satisfied thecourt that his lack of employment was justified for health reasons. The court imputed the same annual income to him that he had beenearning when he left his job. [112] In Lawson v.

Lawson, supra, the Ontario Court of Appeal approved of the trial judge’s decision regarding the amount ofincome imputed when he averaged the payor’s income for the three years prior to the time that he was determined to be under-employed. [113] The principles of predictability and certainty with respect to child support orders must be considered paramount given thelack of excuse for non-payment of arrears at the time that they accrued, and the importance of ensuring that parents comply with theirobligation to support their children. [114] The comments of Justice Bastarache were intended to apply in circumstances where the child support payor fails toestablish a change in circumstances affecting his or her ability to pay during the period when the child support arrears accrued, but seeksto rescind or reduce arrears based on current hardship and inability to pay the arrears.

When the comments are interpreted in this manner,they are consistent with the principles that the Alberta Court of Appeal established in Haisman v. Haisman, supra, to the effect that thecourt’s discretion to adjust arrears is extremely limited in those circumstances. [115] With respect to situations where the support payor has established a change in circumstances at the time that arrears wereaccumulating and that affected his or her ability to pay, the Alberta Court of Appeal in Haisman v.

Haisman, supra, did not elaborate onthe factors that the court should consider in exercising its discretion to retroactively reduce or rescind the child support payable. [116] A distinction must be drawn between cases where the child support payor had the ability to pay child support when arrearsaccrued and then asks for relief from payment of the arrears based on current inability to pay, as opposed to those cases where arrearsaccumulated because of a change in the payor’s circumstances that affected the payor’s ability to make the child support payments whenthey came due. [117] The mere accumulation of child support arrears and current inability to pay, without evidence that the payor was unable tomake the child support payments when they became due because of a change in circumstances at that time, do not typically justify arescission or reduction of arrears.

In this situation, the court should enforce the outstanding court order, unless there are compellingreasons not to do so. [118] Where the payor cannot establish a change in circumstances at the time that the arrears accumulated that affected his or herability to pay at the time, evidence that the recipient agreed to non-payment of the support is irrelevant, as child support is the right of thechild and cannot be bargained away by the recipient parent. [119] A general principle is that payors must not arrange their financial affairs so as to prefer their own interests over those oftheir children.

Indeed, a payor will engage in blameworthy conduct even when he does nothing active to necessarily avoid his

obligations if he consciously chooses to ignore them. The case law provides that it is not necessary to prove bad faith in order to findblameworthy conduct. [120] A parent is required to act responsibly when making financial decisions that may affect the level of child support availablefrom him or her.

The case law makes it clear, however, that “intentionally” does not apply to situations beyond a payor’s control. [121] As a practical matter, it is not always easy to determine when a payor is a victim of unfortunate financial circumstances orwhether he is the author of them. [122] The determination to impute income is discretionary, as the court considers appropriate in the circumstances. Therefore,the court may decide not to impute income where the payor establishes the reasonableness of his or her decision or his or her situation. [123] Any discretion used must, of course, be grounded on evidence.

The court can consider the payor’s age, education,experience, skills, health, as well as the availability of job opportunities, the number of hours that could be worked in light of otherobligations and what hourly rate could reasonably be expected for him. [124] Suspicions of bad faith are easy to have, but this is not enough. Such things as reductions in income that arise from marketforces, or legitimate health issues will not quality as voluntary reductions in income. [125] A payor alleging inability to work for medical reasons must obviously provide a sufficient evidentiary basis to support hisor her claim.

See Whelan v. O’Connor, , 28 R.F.L. (6th) 433, [2006] O.J. No. 1660, 2006 Cars​well​Ont 2581 (Ont.Fam. Ct.); and Gobin v. Gobin, 2009 ONCJ 245, 71 R.F.L. (6th) 202, [2009] O.J. No. 2191, 2009 Cars​well​Ont 3007 (Ont. C.J.). [126] Where the child support payor can establish a change in circumstances during the time that arrears were accumulating thatrendered him or her unable for a substantial period of time to make child support payments, the court may provide relief to the payor in alater proceeding to vary the child support order or rescind the arrears owing accordingly. See Haisman v.

Haisman, supra. [127] While unreasonable delay may not negate all potential relief, it is a factor to consider in determining whether the courtshould exercise its discretion to grant relief and, if so, how the remedy should be crafted. Delay in actually initiating a court proceedingmay be a relevant factor in determining whether to grant relief to the payor.

This could arise, for instance, if the payor does not providethe recipient with disclosure which the recipient may need to independently assess the payor’s claim that child support should bechanged. [128] The conduct of the child support payor, including whether he or she: • has made any voluntary payments on account of arrears,• has co-operated with enforcement agencies in addressing the issue of child support,• has kept the recipient fully apprised of the changes in his or her circumstances over time as these changes occurred,• has complied with obligations and requests for financial disclosure to the child support recipient in an effort to address the childsupport issue, and any evidence respecting his or her willingness to support the child or alternatively, to avoid his or her child support obligation is aconsideration.

Behaviour that indicates wilful non-compliance with the terms of the order or failure to work co-operatively to addressthe child support issue is a factor that militates against even partial rescission of or reduction of arrears. [129] Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiringthe payment of substantial arrears is a consideration. [130] If the court determines that a retroactive reduction of child support is appropriate, it must determine the date from whichthe change should be retroactive and the extent of the reduction.

The Supreme Court of Canada in D.B.S. v. S.R.G., supra, hasestablished that, generally, a retroactive child support order should commence as of the date of effective notice that a request is beingmade for an adjustment to child support. It further held that, in most cases, it will be inappropriate to make a support award retroactiveto a date more than three years before formal notice was given to the payor parent. These principles apply equally to claims forretroactive downward variation of child support, to the extent of determining how far back a court should consider making adjustments tothe order.

The effective date of notice is “any indication by the payor parent that child support requires a review and adjustment”. [131] However, in the case of retroactive child support reduction or rescission claims, the payor is the party who has theinformation to support the claim and therefore effective notice in these cases also entails providing reasonable proof to support the claimfor a change to the order, so that the recipient can independently assess the situation in a meaningful way and respond appropriately.

Achild support recipient is entitled to expect that the existing order will be complied with and to arrange his or her financial affairsrespecting his or her children accordingly, unless he or she is in receipt of reasonable proof that a relevant change in the payor’scircumstances has occurred.

The absence of a disclosure requirement on the payor in these cases would unfairly impose a burden on thesupport recipient to attempt to confirm the alleged change in circumstances in order to decide how to respond to the payor’s claim for anadjustment. [132] I am cognizant of the fact that the respondent received Ontario Works benefits in 2010 and ODSP thereafter.

Althoughthese considerations are relevant in determining whether to impute income to a child support payor, they are not determinative of theissue and do not preclude the court from imputing income where the evidence indicates that the child support payor’s employmentsearch efforts were deficient and that the payor was not employed to his or her capacity during the relevant time frame. [133] Having determined that the respondent has established a change in circumstances since the order was made, it remains tobe decided whether the arrears that have accumulated under that order should be rescinded or, alternatively, whether they should bereduced on the basis of a retroactive downward change to the child support payable.

[134] With respect to the respondent’s final request that all child support arrears be rescinded, I decline to make such an order. Ifind that the respondent had the capacity at least up to 1 January 2006 to earn an annual income of $37,500.00. Any concern regardinghardship can be addressed by means of a reasonable payment plan. [135] The onus is on Ms. Cole to establish that Freiwald has been intentionally unemployed or under-employed. I find that theonus has been satisfied. The person requesting an imputation of income must establish an evidentiary basis upon which this finding canbe made. See Homsi v.

Zaya, 2009 ONCA 322, 248 O.A.C. 168, 65 R.F.L. (6th) 17, [2009] O.J. No. 1552, 2009 Cars​well​Ont 2068 (Ont.C.A.). [136] The court in Drygala v. Pauli, supra, set out a three-part test to determine whether income should be imputed. The firstpart of the test is to ask whether the payor is intentionally under-employed or unemployed. The court stated that there is no need to finda specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or shechooses to earn less than what he or she is capable of earning.

The court must look at whether the act is voluntary and reasonable. [137] The evidence in this case is overwhelming that the father has been intentionally under-employed. He is intelligent andwell-spoken. He testified that he has not applied for any jobs and has no intention to do so because of medical reasons. He hasintentionally chosen not to earn more income. I find that he has made no efforts since quitting his job to secure employment at acomparable rate of compensation. [138] The second part of the test in Drygala v.

Pauli is (at paragraph [23]): If so, is the intentional under-employment or unemployment required by virtue of his reasonableeducational needs? [139] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. Parents can take jobs with less money as long as the decision is reasonable. A payor cannot be excused from his or her supportobligations in furtherance of unrealistic career aspirations. See Hanson v. Hanson, supra. The payor must prove that any medical excusefor being under-employed is reasonable. See Rilli v.

Rilli, , 151 A.C.W.S. (3d) 1130, [2006] O.J. No. 4142, 2006Cars​well​Ont 6335 (Ont. Fam. Ct.). [140] I find that Freiwald has not followed up on medical advice provided to him. He has not used reasonable efforts to addresswhatever medical limitations he may have. [141] The onus is on Freiwald to prove that the medical excuse provided a reasonable justification for his under-employment. He has failed to do so. [142] The third part of the test in Drygala v. Pauli is (at paragraph [23]): If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills,health, available employment opportunities and the standard of living earned during the parties’ relationship. The court looks at theamount of income the party could earn if he or she worked to capacity. [143] Counsel have referred to the judgment of the New Brunswick Court of Appeal on child support of Brown v. Brown, supra. Appeal Justice Joseph T.

Robertson provides an overview of the principles to be applied in New Brunswick in variation proceedingswherein the judicial remission of arrears of child support or spousal support is sought (emphasis in the original text): [2] The jurisdiction to issue retroactive variation orders that reduce or cancel arrears of support hasbeen carefully circumscribed under both the provincial and federal legislation. In each instance, theorder is contingent on the court finding a “change in circumstances” of one of the parties, or a child,between the time of the original order and the application for variation.

Invariably, the law requires thechange to be “material”. Actually, the court must rule on two discrete questions: Was there a materialchange in circumstances during the period of retroactivity and, having regard to all other relevantcircumstances during this period, would the applicant have been granted a reduction in his or hersupport obligation but for his or her untimely application? The concept of material change incircumstances has always been interpreted broadly.

As a general proposition, the court will be askingwhether the change was significant and long lasting; whether it was real and not one of choice. [3] When deciding whether to grant a full or partial remission of arrears, courts need not beconcerned with several factors often explored in the jurisprudence of other jurisdictions. Specifically,the court need not address why the applicant failed to make a timely application for retroactivevariation.

Correlatively, the court need not be concerned with the reasons underscoring the supportrecipient's failure to pursue timely enforcement measures thereby thwarting the accumulation of arrears. In short, the notion of “fault” plays no role in the decision to grant retroactive variation orders involvingsupport arrears. Admittedly, this narrowed approach appears to deviate from the analytical frameworkset down in D.B.S. v. S.R.G., [2006] 2 S.C.R. 231, [2006] S.C.J. No. 37, 2006 SCC 37.

In that case, theSupreme Court outlined four factors to be considered when deciding whether to order a retroactiveincrease in child support, including the two factors just cited. But the present case involves aretroactive order to reduce both spousal and a child support. The distinction between the two orders isnot without difference and one which did not escape the Supreme Court.

It is one thing to demandimmediate payment of monies with respect to a past obligation that only recently matured and quiteanother to seek an order that recalculates and reduces the amount owing with respect to a debt neverpaid. [144] The distinction, inter alia, between a variation order for the remission of arrears and a judicial refusal to enforce arrears,

[144] The distinction, inter alia, between a variation order for the remission of arrears and a judicial refusal to enforce arrears,which is drawn by Appeal Justice Robertson is important because, once arrears have been remitted by court order, they cannot besubsequently reinstated. See Beninger v. Beninger, 2009 BCCA 145, 269 B.C.A.C. 56, 99 B.C.L.R. (4th) 72, 453 W.A.C. 56, 78 R.F.L.(6th) 37, [2009] B.C.J. No. 638, 2009 Cars​well​BC 818 (B.C.C.A.) (spousal support); L.B.L. v. S.B., 2010 NBQB 339, 366 N.B.R. (2d)24, 942 A.P.R. 24, 91 R.F.L. (6th) 141, [2010] N.B.J. No. 328, 2010 Cars​well​NB 474 (N.B.Q.B., Fam.

Div.) (child support). AppealJustice Robertson noted that the husband brought a motion for a retroactive variation order to reduce or eliminate arrears of child supportand spousal support totalling $132,965 that had accrued since 2004. The New Brunswick Court of Appeal found no error in the motionjudge’s remission of the arrears of child support that accrued during the months that the child resided with the husband.

However, itfound some merit in the husband’s argument that the motion judge erred by narrowing the scope of the remaining issues to whether thesupport arrears should be reduced or eliminated because of the wife’s failure to pursue timely enforcement measures. [145] Appeal Justice Robertson acknowledges that D.B.S. v.

S.R.G., supra, deals with child support but he perceives “no validpolicy reason for distinguishing between child and spousal support when it comes to the retroactive variation of arrears” because “theneed for the distinction evaporates once it is accepted that delay in enforcement (the notion of fault) is no longer a relevant considerationwhen it comes to retroactive orders involving a decrease in support” (at paragraph [30]).

His elimination of any distinction between childsupport and spousal support runs contrary to case law elsewhere in Canada, which suggests that child support arrears are less likely to beremitted, because parents cannot waive their child’s right to support and the conduct of a parent should not prejudice the rights of thechild. See, for example, Haisman v. Haisman, supra. [146] Justice Robert D. Laing of the Saskatchewan Court of Queen’s Bench, in Diebel v. Diebel, , 155 Sask.R. 96, 28 R.F.L. (4th) 100, [1997] S.J. No. 165, 1997 Cars​well​Sask 169 (Sask. Q.B., Fam.

Div.), at paragraph [11], endorsed thefollowing opinion of the Alberta Court of Appeal in Haisman v. Haisman (emphasis in original text of the Alberta Court of Appeal): A present inability to pay arrears of child support does not by itself justify a variation order. It mayjustify a suspension of enforcement in relation to the arrears for a limited time, or an order providing forperiodic payments on the arrears.

However, in the absence of some special circumstance, a variationorder should only be considered where the former spouse has established on a balance of probabilitiesthat he or she cannot pay and will not in the future be able to pay the arrears. [147] The best evidence of what Freiwald could earn came from him. I am imputing minimum wage of $21,300.00 per year tohim as of 1 January 2006. I will also provide for repayment of child support arrears over a period of time. [148] I find that the respondent is entitled to a retroactive downward adjustment to the child support payable commencing on 1January 2006.

I find that his child support payments commencing on 1 January 2006 should be in the amount of $182.00 per month, thetable amount for one child under the Guidelines.

This order is to terminate effective the date on which Freiwald commenced receivingODSP. [149] I decline to grant a retroactive adjustment to the child support prior to 1 January 2006. [150] I find that Shannon is a dependent. [151] I find that Shannon is a full-time student. [152] The respondent’s delay in initiating these proceedings and his conduct in addressing the child support issue are veryimportant considerations. [153] Freiwald did not make any voluntary payments towards child support until 2009. [154] I find that Freiwald failed to engage in dialogue with the Family Responsibility Office about the changes in hiscircumstances and that he failed to keep that office apprised of his contact information. [155] Based on the foregoing, a final order shall issue as follows. [156] Paragraph 1 of the order of Provincial Judge Heather L.

Katarynych dated 14 May 1998 is saved by substituting for thatparagraph the following terms: 1. The arrears of child support owed by the respondent to the applicant for Shannon shall beadjusted by calculating the total amount of child support owed to the applicant based on incomeof $37,500.00, having regard for the terms of this order, and subtracting from that sum anyamounts that the applicant has already received on account of child support owed to her up to 1January 2006. 2.

The arrears of child support owed by the respondent to the applicant for the child shall beadjusted by calculating the total amount of child support owed to the applicant from 1 January2006, based on imputed income of $21,300.00 or $182.00 per month child support until 1November 2010, and subtracting from that sum any amounts that the applicant has alreadyreceived on account of child support owed to her. 3.

Any and all arrears of child support that the respondent owes to the applicant, after thecalculations referred to in paragraphs 1 and 2 of this order are carried out, shall be paid to theapplicant at the rate of $425.00 per month, commencing on 1 September 2011, and to continueon the first day of each month that follows until the arrears are paid in full. This provision shallnot preclude enforcement of outstanding child support arrears against refunds payable to therespondent from any government source. [157] A support deduction order shall issue.

[ 158 ] If any arrears support payment is in default for more than 30 days, the entire sum shall immediately becomes due and payable. [ 159 ] I thank counsel for their presentation of this case. [ 160 ] Counsel may make submissions as to costs within 30 days.