.2012041528550.jpg)
BACKGROUND
The Applicant Father and the Respondent Mother began a relationship in 2005 while the father was a professional basketball player for the Toronto Raptors and living in Toronto. The parties had a child in 2008 who was the subject of the proceedings. The parties were never married and their relationship ended shortly after the child’s birth. The father had retired from professional basketball in 2016 and currently resides in the United States where he is now a businessman, real estate developer, entrepreneur, restaurant owner, and investor. The child is 17 years old and currently resides with the mother in Ontario, as has always been the case.
This is an uncontested motion by the mother to change child support addressed in the parties’ 2008 Domestic Agreement. The 2008 Agreement provided that the father would pay child support to the mother in the amount of $18,000 per month based on an agreed imputed income of $2.5 million CAD. The father brought a previous motion to change child support in 2016 following his retirement from basketball which was heard by the court in 2018. The 2018 hearing resulted in an adjustment to his imputed income: from $2.5 million to $1.1 million. Based on the income of $1.1 million, the father’s child support obligation decreased to approximately $8,000 per month. The mother’s position at this motion to change was that the father misrepresented his income during the 2018 trial and there has been a significant increase in his income since 2019. The mother seeks for the father’s monthly child support obligation to be set at approximately $25,000 based on an imputed income of about $3.4 million retroactive to 2014. As this hearing was uncontested, the father did not participate.
ISSUES
- Has there been a material change in the circumstances of the father’s income?
- If so, what is the presumptive start date for support to be changed?
- What is the quantum of support payable for every year from the start date support is changed?
ANALYSIS
The court applied the framework from Colucci v Colucci 2021 SCC 24 to determine retroactive applications to increase child support. The legal analysis can be summarized as follows:
Has there been a material change in the circumstances of the father’s income?
The first step of the Colucci framework is to determine whether the recipient (the mother, in this case) has met the threshold of establishing a past material change in circumstances. Though the burden is on the recipient to prove a material change, the threshold is low, and a court has authority to impute income, strike pleadings, draw adverse inferences, and award costs against the payor if they fail to disclose relevant financial information.
The father chose not to participate in this hearing, and thus, had not provided any financial disclosure since 2019. Since the father did not provide his own financial disclosure, the only evidence available before the court was the mother’s “lifestyle evidence”: evidence of the father’s lifestyle based on his social media posts, and other internet resources. She argued that the father was living a lifestyle that was “more in line” with an annual income of $7 million USD. In Bak v Dobell 2007 ONCA 304, the Court of Appeal stated that although lifestyle is not income, it can be used to make inferences about a payor’s undisclosed income that may be imputed for the purposes of determining child support.
Based on ample evidence from the father’s social media accounts that he lives a very luxurious lifestyle, and his decision to willfully disregard a court order for financial disclosure, the court inferred that his income increased substantially, therefore, establishing a material change.
What is the presumptive start date for support to be changed?
Since the mother met the threshold, a presumption arose in favour of a retroactive increase of child support to the date she gave the father ‘effective notice’ of the request for an increase, up to three years before formal notice by way of application. Effective notice means any indication by the recipient that child support either should be paid, or, if it is already being paid, that the amount should be renegotiated.
The court found that the mother gave formal notice to the father on April 14, 2024, when she served her motion to change on the father, however, there was no clear evidence regarding a date of effective notice prior to that. The mother testified that she attempted to broach the subject of child support with the father before commencing court, however, she argued the father was abusive and dismissive of her.
The court considered reasons for delay in effective notice, whether there was blameworthy conduct of the father, and whether there would be undue hardship against the father in paying a large retroactive award.
With respect to delay in effective notice, the court determined the mother’s delay was understandable as she had significant mental and emotional health challenges interfering with her ability to communicate with the father, she was not working and relied almost solely on the child support paid by the father to meet the child’s needs without little parenting support from the father, and she was concerned that commencing new proceedings could negatively impact the child’s relationship with the father.
In terms of blameworthy conduct, the father had engaged in same due to his failure to provide any financial disclosure or participate in the proceedings.
With respect to undue hardship, the father would not have been prejudiced in paying a large retroactive award as at the time of the 2019 trial, he had considerable savings, investments, and a high net worth. There was no evidence that his financial position worsened since then.
The court determined the fair and reasonable start date for support was April 1, 2023, which was one year before the father received formal notice of the proceeding.
What is the quantum of support payable for every year from the start date support is changed?
The court decided to impute an income of $2.5 million to the father for several reasons including that he has considerable savings and net worth, he has no trouble consistently meeting his child support payments, he has not produced any financial disclosure since 2019, the court could draw a reasonable inference that his refusal to provide disclosure suggests he is aware that his current income is significantly higher than $2.5 million, and the father was put on written notice by the court in 2025 that an income of 2.5 million will be imputed to him if he continues to breach his disclosure obligations.
Given the father’s blameworthy conduct and his failure to provide evidence that the table child support guidelines are not suitable, the father’s ongoing monthly child support payment will be set at approximately $19,000.
In total child support arrears retroactive to April 1, 2023, the father owed the mother over $387,000.
CONCLUSION
The mother was the successful party in the case, and the court varied the Final Order from the trial in 2018 to reflect the father’s new imputed income of $2.5 million. This case serves as a cautionary tale about the importance of participation in court proceedings and providing fulsome financial disclosure.
Attention Legal Counsel: Professional Mediation Services
When your clients have reached an impasse in settlement discussions, Andrew Feldstein offers third-party mediation services specifically designed for cases where both parties have independent legal representation.
Why lawyers refer cases to Andrew:
- 30+ years family law litigation experience providing courtroom-informed reality testing
- Expertise in complex financial matters including business valuations and professional corporations
- Efficient, structured process that respects counsel's time and maintains client relationships
- Flexible scheduling including virtual mediation and travel to counsel offices
Cases we handle: Negotiation stalemates, complex asset division, support calculation disputes, parenting arrangements, multi-jurisdictional matters, and post-separation modifications.
Refer your next mediation: Call Andrew directly at 905-415-1635 ext. 255 or email info@separation.ca. Virtual and in-person sessions available throughout the GTA.