Background

The case involves a father's motion to amend the child support terms outlined in the November 2008 Order. The parties were in a not married but had a relationship from 2002 to 2007 and have two children, aged 19 and 17, who have primarily resided with their mother and maintained minimal contact with their father.

The original order was issued after an uncontested hearing, where the father's imputed income was set at $30,000. He was ordered to pay $444 per month for both children, commencing on December 1, 2005.

On May 28, 2011, the father filed his initial motion to modify the order. However, he was absent during the trial, leading to the dismissal of his motion by Justice Curtis. Shortly after, Justice Curtis conducted a default hearing and determined arrears of $20,007.37, failure to pay the arrears would result in a 90-day jail term. The father made no payments and did not appeal the order. Upon his return to the country in 2017, he was arrested based on the warrant of committal from Justice Curtis, and his current arrears amount to $64,806.88.

In this motion, the father was seeking to reduce his arrears to $3,240 and modify ongoing support to $135 per month starting from January 1, 2023, reflecting his 2021 annual income of approximately $14,000. He is currently on ODSP (Ontario Disability Support Program) and has been unemployed since his release from prison.

Issues

The issues for the court to determine are:

a) Has there been a material change in the father's income since the existing order?

b) If so, what is the presumptive start date for changing child support?

c) Should the court deviate from the presumptive start date?

d) How should the court assess the father's income when modifying child support?

e) What is the appropriate method of repaying any outstanding support arrears?

Analysis

The father argued that his arrears should be eliminated due to his completion of a full jail sentence. However, Subsection 41(17) of the Family Responsibility and Support Arrears Enforcement Act clearly states that imprisonment does not discharge arrears.

The court has broad authority to modify, suspend, or discharge child support orders retroactively or prospectively, as well as to rescind or reduce arrears and interest payable. This authority is outlined in Meyer v. Content, 2014 ONSC 6001.

The framework for decrease support comes from Colucci summarized as follows:

1. The payor must meet the threshold of establishing a past material change in circumstances.
2. Once a material change in circumstances is established, a presumption arises in favour of retroactively decreasing child support to the date the payor gave the recipient effective notice, up to three years before formal notice of the application to vary.
3. Where no effective notice is given by the payor parent, child support should generally be varied back to the date of formal notice, or a later date where the payor has delayed making complete disclosure in the course of the proceedings.
4. The court retains discretion to depart from the presumptive date of retroactivity where the result would otherwise be unfair. The D.B.S. factors (adapted to the decrease context) guide this exercise of discretion. Those factors are: (i) whether the payor had an understandable reason for the delay in seeking a decrease; (ii) the payor’s conduct; (iii) the child’s circumstances; and (iv) hardship to the payor if support is not decreased (viewed in context of hardship to the child and recipient if support is decreased).
5. Finally, once the court has determined that support should be retroactively decreased to a particular date, the decrease must be quantified. The proper amount of support for each year since the date of retroactivity must be calculated in accordance with the Guidelines

Notices are considered effective only when they disclose the changed financial circumstances adequately. A brief email is insufficient to notify the recipient of the need for reduced child support; rather, it should include specific details and supporting evidence, as emphasized in Jonas v. Akwiwu, 2021 ONCA 641.

Has there been a material change in circumstances regarding the father’s income since the existing order was made?

Regarding a material change in the father's income since the existing order, the court found that the father met the low threshold due to an injury in 2017 that negatively impacted his earning capacity as initially imputed.

b) If so, when is the presumptive start date that child support should be changed?

The presumptive start date for changing child support, as per Colucci, should be the effective notice date, which should not exceed three years before the formal notice date. Since the father provided no disclosure about his income change to the mother and did not follow up on his 2017 request to reduce arrears, the court determined the presumptive start date as June 10, 2021, the day he initiated this motion.

Considering the father's conduct, lack of understandable reasons for the delay in filing the motion, failure to provide financial or medical evidence to support his request, and minimal effort in negotiating a settlement, the court decided not to deviate from the presumptive start date for changing support.

c) Should the court deviate from the presumptive start date when child support should be changed?

The court found that the father did not provide an understandable reason for his delay in bringing his motion to change. He did not provide the mother with financial or medical evidence for her to assess his request to reduce support. He did not make any further effort to negotiate settlement until just before he issued his motion to change on June 10, 2021.

The father engaged in serious blameworthy conduct. He had not paid support for 11 years or show any interest in taking steps to improve his ability to earn income. He further did not provide any financial disclosure to the mother.

The court decided that based on his behavior, to not deviate from the presumptive start date to change support.

d) At what level should the court assess the father’s income in any year it determines that child support should be changed?

The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions

which should be answered by a court in considering a request to impute income:

(i) Is the party intentionally under-employed or unemployed?

(ii) If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs, the needs of the child or reasonable health needs?

(iii) If not, what income is appropriately imputed?

Receipt of ODSP or Workplace Safety and Insurance Board benefits alone does not prove an inability to work for support purposes, as established in Tyrrell v. Tyrrell, 2017 ONSC 6499.

To justify intentional underemployment, the father must provide reasonable medical evidence, such as detailed medical opinions, to support his decision not to work, as illustrated in Rilli v. Rilli, [2006] O.J. No. 4142 (SCJ.), and Cook v. Burton [2005] O.J. No. 190 (SCJ).

The court determined that the father has been intentionally underemployed since June 10, 2021, as he made no effort to seek employment, pursue education, or follow medical advice to alleviate his back pain. Considering his conduct, the court imputed an annual income of $18,000 to the father, starting from June 10, 2021, and modified the existing order accordingly.

The court does not rescind any arrears due to the father's significant blameworthy conduct.

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