BACKGROUND

The parties separated in 2013 and share one child, now aged 12. Historically, the father has been employed in the landscaping and trucking industries. His child support obligations were first established by court Order in 2014 and have been subject to several adjustments through various court Orders.

In February 2019, the father sustained an injury, which he claimed prevented him from working. In August 2022, the father brought a Motion to Change, arguing that his injury made him unable to work and challenging the court’s imputation of income at prior levels. He submitted medical records, physiotherapy reports, and letters to support his claim.

The court found that the father’s injury temporarily impacted his ability to work and adjusted his child support obligations for a limited period. However, the court concluded that the father’s unemployment after July 20, 2020, was a result of choice rather than necessity and declined to reduce his obligations on a permanent basis. The resulting final Order, dated October 20, 2022, reflected these findings.

Despite this, the father filed a new Motion to Change in July 2023, seeking a retroactive reduction in his child support obligations dating back to 2019, as well as an ongoing adjustment. He claimed that his health issues continued to prevent him from working and that his limited income justified a reduction.

ISSUE

The ultimate issue on the Motion is whether Summary Judgment should be granted on the issues of the father's child support obligation, retroactively or going forward, in whole or in part.

THE LAW

This Motion to decrease child support, including retroactively, is governed by section 37(2.1) of the Family Law Act, R.S.O. 1990, c. F.3. To succeed, the payor must demonstrate a past material change in circumstances and a sustained decrease in income. The payor is required to provide reliable evidence showing the extent and duration of the income change, and the change must not be voluntary. Retroactive reductions in support must be based on accurate, complete information, as outlined in Colucci v Colucci 2021 SCC 24.

Summary Judgment Motions are governed by Rule 16 of the Family Law Rules and the principles established in Hryniak v Mauldin 2014 SCC 7. Under Rule 16(4), the moving party must submit specific evidence showing no genuine issue requiring trial, while the responding party must provide specific facts to demonstrate such an issue. If no genuine issue is found, the court must issue a final Order (Rule 16(6)). Courts are expected to decide based on the evidence presented, without assuming the trial will provide further evidence.

The test for summary judgment, as outlined in Hryniak, is that there is no genuine issue requiring a trial when the judge can make the necessary findings of fact, apply the law, and provide a fair, just, and proportionate resolution. The standard of fairness is not whether the procedure is as exhaustive as a trial, but whether it allows the judge to resolve the dispute. The court may weigh evidence, evaluate credibility, and draw reasonable inferences under Rule 16(6.1), and can order a mini-trial if necessary (Rule 16(6.2)). However, a mini-trial may still result in a finding that further hearings are required.

APPLICATION

The court granted summary judgment, dismissing the father's Motion to reduce child support, both retroactively and ongoing, due to insufficient evidence. The father failed to meet the required threshold for a reduction, lacking reliable and complete information regarding the decrease in his income and its connection to his health issues. Despite submitting a physician's letter, it was deemed inadmissible hearsay, and other submitted evidence, such as a decision from the Ontario Social Benefits Tribunal (ONSBT), was not accepted due to issues of transparency and relevance. Additionally, the ONSBT decision did not present new evidence that justified reopening the matter under Section 37(2.1) of the Family Law Act.

The court noted that the father's failure to provide detailed medical evidence, including a comprehensive opinion linking his health conditions to his ability to work, was a critical factor. The father also withheld information regarding his mental health, which further undermined his case. Consequently, the father's Motion to Change child support was dismissed, and the issue of costs was left for further written submissions.