Court File and Parties

COURT FILE NO.: FS-13-39062 DATE: 20190329

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Galina Psavka, Applicant – and – Robert Kroll, Respondent

Appearing on her own Behalf Appearing on her own Behalf

HEARD: January 28-31, February 4-8, 12-15, 2019

C. Gilmore, J.

JUDGMENT

OVERVIEW

[1] This family law trial was the culmination of five and a half years of bitter litigation. The animosity between the parties was palpable throughout. They could not agree on any of the facts. The vitriol between them during cross-examination was a constant issue for the court in terms of controlling the court process and the length of this proceeding, which was scheduled for eight days but took 14. While the legal issues in this case are not complex, they were wrapped in a level of emotion and resentment that made it difficult to unravel them in order to make sense of the case.

[2] The applicant/wife “Galina” blames the respondent/husband “Robert” for her financial devastation. She was steadfast in her accusations that he is dishonest, violent, manipulative and that he has failed to provide disclosure and misrepresented his income to the court throughout these proceedings. She told the court that all of Robert’s witnesses were unreliable because they had conspired to manipulate documents in order to hide his income from her. Galina insists Robert has ignored his children in favour of his various girlfriends and his work commitments. The fact that the children do not feel safe or comfortable with him is his own doing.

[3] Galina claims a significant amount of ongoing and retroactive child support, spousal support and section 7 expenses. She wants the lifestyle she had during the marriage and she wants Robert to pay for it.

[4] Robert alleges that Galina has never forgiven him for ending the marriage. In order to show her disapproval of his lifestyle and his subsequent romantic choices, she has alienated the children from him, disparaged him to his clients and business colleagues, refused to cooperate throughout the litigation and been unreasonable, caustic and unresponsive in terms of any possible settlement.

[5] Robert’s view is that the children have been alienated from him because of Galina’s anger and resentment towards him which she is incapable of hiding from them. She has used the children and particularly their youngest child M.K. as a conduit to ask Robert for money, cars, food and various other things that should be dealt with solely between parents.

[6] Robert denies hiding income or failing to provide court ordered disclosure. He submitted that Galina refuses to change her out-of-control spending habits. Her financial devastation is as a result of her dismal financial management and choices. Robert is willing to pay both child and spousal support but based on a reasonable amount of income given that he is self-employed and his income and expenses vary from year to year. Robert’s position is that he has overpaid support by more than $50,000.

[7] The parties have exhausted all of their assets in pursuing this litigation. Robert testified that he has spent over $350,000 on lawyers. Galina spent $200,000 and still owes $100,000 to MacDonald and Partners. The parties have spent virtually all of the sale proceeds from their matrimonial home to fund this litigation. Unfortunately, by the time this matter proceeded to trial, neither of them were able to afford counsel.

[8] At the commencement of trial Robert brought a motion which he was authorized to do by the Trial Management Conference judge. Robert sought to enforce the terms of a settlement which he alleged the parties reached in December 2014 on the issue of equalization and support to the end of December 2014.

[9] Based on Galina’s previous counsel’s acknowledgment of this settlement, Galina’s acknowledgment of it in previous affidavit material, and for other orally delivered reasons, I found that a settlement had been reached. An endorsement with my detailed reasons was released on January 29, 2019 to the parties.

[10] Given my ruling, the issue of equalization has been settled, other than the division of household contents. In addition, given the settlement of child and spousal support up to December 31, 2014, this judgment will only deal with adjustments to and the payment of support and section 7 expenses commencing January 1, 2015 and forward.

[11] There has never been a custody order in this case. Both parties want final sole custody of M.K., now aged 13. The parties agree that custody and access issues related to R.K. are not in issue given that she is 20 years old and attending university full time. Galina’s position is that she was the children’s primary caregiver both during the marriage and during the 7.5 years following separation.

[12] Robert sought sole custody of M.K. in his pleadings. At the commencement of trial, he sought joint custody. After the evidence was completed, he submitted that it was clear from Galina’s conduct during the trial and the parties’ inability to communicate effectively on child related issues that joint custody was not feasible. He now seeks a form of parallel parenting in which each parent is responsible for certain decisions related to M.K.

[13] Robert submits that Galina has engaged in a campaign of alienation by using the children as pawns throughout the litigation. Robert fears that without some form of decision-making ability he will be even more marginalized from M.K.'s life than he is now. Robert is realistic about the 7.5 year status quo with respect to M.K. living with his mother.

[14] As an incident of custody, Robert wants an order that he may travel with M.K. without Galina’s consent, that he may be permitted to apply for and retain M.K.’s passport without Galina’s consent and that Galina may not change M.K.’s school without his consent.

[15] As a result of what Robert calls ongoing harassment by Galina, he seeks a restraining order.

[16] Both parties seek adjustments to child and spousal support as follows:

a. Robert seeks to reduce child support retroactive to September 2016 when R.K. began living at Queen’s University from September to April each year. b. Robert seeks an adjustment of support from April to August 2017 when R.K. lived with him. c. Robert seeks an adjustment of support from April to August 2018 when R.K. was not living with either parent. d. Robert seeks credit for various amounts paid directly for R.K.’s support while at university such as tuition, rent and incidentals. e. Robert seeks credit for various amounts paid directly to Galina to assist her with outstanding bills and rent. Galina does not dispute the amounts paid but insists they were loans and should not be a credit towards support. f. Robert seeks a credit for overpayment of child and spousal support retroactive to January 1, 2015. g. Robert agrees to pay his share of s.7 expenses for the children but only for R.K.’s university expenses and for activities for M.K. for which he has given his consent. h. Robert seeks to impute income to Galina of $75,000 per annum and assesses his own income for support purposes at $218,000 per annum for both retroactive and ongoing support. i. Galina seeks to have support continue for two children and for Robert to pay his proportional share of R.K.’s tuition and living expenses at university and for M.K.’s activities. She denies that Robert is owed any credit for support. While acknowledging that she would owe her share of s.7 expenses to Robert, she is not in a financial position to pay any amounts to Robert. j. Galina submits that Robert’s income for support purposes should be imputed in the range of $429,000 per annum. As such, support has been significantly underpaid and she is owed a credit of $270,587 from January 1, 2015 to date plus his share of s.7 expenses.

[17] The parties provided both written and oral submissions (including case law) on all issues. Galina was permitted to provide additional submissions after the trial. She was granted two extensions. Robert provided a written reply. I have reviewed the additional written submissions. Many of the issues raised in Galina’s written submissions were new evidence and unable to be considered by the court. Where the issues were properly submitted, they were considered in the context of the evidence and the parties’ oral submissions at the conclusion of the trial.

FACTUAL AND LITIGATION BACKGROUND

[18] The parties were married on November 26, 1995. The date of separation was originally in dispute. During the course of the trial, Robert agreed that the date of separation was July, 2011.

[19] The parties have two children, R.K., born December 26, 1998 and M.K., born March 16, 2005. R.K. is in her third year at Queen’s University in Kingston. The parties’ contribution to s.7 expenses for R.K.’s tuition, books and living expenses was very much in issue in this trial.

[20] M.K. is now 13 and in Grade 8. Both children resided with Galina following separation. M.K. continues to reside with her full time.

[21] While both parties have been in dating type relationships since the date of separation, neither party was in a permanent relationship at the time of trial.

[22] Based on a consent order dated January 17, 2014, the parties agreed as follows:

a. Robert to have access to both children; i. Alternate weekends commencing January 24, 2014 from Friday after school until Monday morning at school. Robert to advise before January 22, 2014 where the children would be residing during access. ii. Robert to take M.K. to his hockey and skating practices and Galina to provide information in writing about the location of the games and practices. Galina is free to attend any game or practice. iii. Robert to take the children to their tennis lessons during the week. b. The children to be dropped off at the matrimonial home. c. The children shall be in the care and control of Galina and shall reside with her in the matrimonial home.

[23] The matrimonial home has long since sold. M.K. continues to live full time with Galina. R.K. resided with her full time until she left for university in the fall of 2016.

[24] Robert submits that he has been continually deprived of time with M.K. due to Galina’s interference with his relationship with M.K. and her blatant refusal to adhere to the consent order. Galina does not dispute that she is in breach of the consent order. She says this is because M.K. does not feel safe staying overnight with his father.

[25] Galina does not agree to any form of shared or parallel parenting arrangement with Robert. Her position is that Robert has not demonstrated a commitment to the children either financially or emotionally. He has been the author of his own misfortune by failing to prioritize his time with the children over his business interests and his girlfriends.

[26] After separation Galina lived in the matrimonial home until it was sold. She then rented the matrimonial home from the new owner for approximately six months. Galina moved from the matrimonial home to a rental home on Elmsthorpe Avenue in Toronto. There is a dispute as to whether Galina told Robert she was moving or that she was going to change M.K.’s school. Robert says all of this was done without his knowledge or consent. Galina says that this is another of Robert’s games and of course she informed him of when she was moving and where M.K. would be going to school.

[27] When Galina moved from the matrimonial home, the issue of household contents had not yet been settled. According to Robert, she took all of the contents with her to the Elmsthorpe home without allowing Robert to remove his share. She left his suits, shirts and ties in garbage bags in the garage. Galina disputes this and testified that Robert had many opportunities to retrieve his personal items and share of contents, he simply failed to do so.

[28] Galina was eventually evicted from Elmsthorpe due to rental arrears. She left Elmsthorpe and moved to a one-bedroom condo in Yorkville with M.K. and their dog. As the condo was significantly smaller than Elmsthorpe, Galina simply left everything behind that did not fit into her new rental. Robert’s evidence was that R.K. was devastated as many of her personal items and other necessaries such as winter coats and boots were left behind and disposed of by the landlord.

[29] Robert was also very distressed because he contacted the agent for Galina’s landlord asking to come by with a van and move the left behind items into storage. Galina would not consent to this. At trial Robert was visibly upset as he testified that there was never a division of household contents. Galina took everything, and what she did not want was disposed of by her former landlord. Robert’s evidence was this included personal mementos and photos, valuable signed prints, furniture and other cherished items. Although recognizing that the contents were made up entirely of used items, he estimates their value at $20,000 and seeks an equalization payment of $10,000 for his share of contents.

[30] The other significant issue in this trial relates to the determination of both parties’ incomes, retroactive and ongoing child and spousal support and retroactive and ongoing s.7 expenses.

[31] On April 10, 2014, the parties agreed by way of consent order that Robert would pay undifferentiated support of $4,000 per month. Galina reluctantly agreed that, while he was late on occasion, Robert paid the $4,000 per month up to July 2016 when support increased as set out below.

[32] In December 2016 Galina brought a motion for interim child and spousal support. At that time, her position was that support should be based on an imputed income to Robert of $450,000 per annum. She also sought to have Robert declared a vexatious litigant and restraining Robert from taking further steps in the litigation due to his failure to provide key disclosure.

[33] I note that by the time this motion was heard there had been more than 10 court appearances and endorsements in this litigation. The February 22, 2017 endorsement of Harvison Young, J. (as she then was) required Robert to pay interim child support of $4,577 per month and interim spousal support of $456 per month retroactive to July 29, 2016. Support was based on an imputed annual income to Robert of $375,000 and an imputed annual income of $200,000 to Galina.

[34] In October 2017, the parties each brought motions. Galina sought an order striking Robert’s pleadings for failing to attend questioning, arrears of support, disbursements to pay her criminal lawyer and an order appointing a therapist to deal with child-related issues.

[35] By way of cross-motion, Robert sought an order to adjust support and apply certain credits towards arrears, thereby extinguishing all of the arrears alleged by Galina.

[36] In her endorsement dated October 26, 2017, Croll, J. noted there had been a further nine appearances and endorsements since the December 2016 motions. She ordered that Robert produce certain disclosure, set a date for questioning, a date for service of Robert’s income valuation and a date for a Trial Management Conference. A trial was scheduled to commence on January 8, 2018. Galina was ordered to pay Robert costs of $5,000, however, those costs were not payable until a trial decision had been rendered in the event that the costs could be set off against other amounts.

[37] In early January 2018, both parties brought motions related to the upcoming trial. Galina sought disbursements so she could retain counsel and Robert returned his motion related to support adjustments. The court found that the case was not trial ready and adjourned the motions to March 26, 2018. The trial dates were vacated. On the return of the motions, Kruzick, J. dismissed both motions. Costs were reserved to the trial judge. A Trial Management Conference was set for April 30, 2018. Neither party was permitted to bring motions without leave.

[38] At the April 30, 2018 Trial Management Conference, Mesbur, J. noted that 16 different judges had dealt with this matter. She also noted that the matter was not trial ready and ordered the parties to complete certain steps after which a further Trial Management Conference could be scheduled.

[39] On May 1, 2018 Robert brought a motion to reduce support, without leave. The motion was dismissed. He was ordered to pay costs of $2,000 to Galina, enforced as support by FRO. That endorsement has never been taken out as an order due to disputes between the parties as to the form of the order. Robert has not paid these costs because he insists that Galina owes him $5,000 from the October 26, 2017 endorsement of Croll, J. He also insists that Galina owes him at least $19,000 in further costs from motions and appearances at which various judges deferred costs to trial.

[40] On November 18, 2018, Galina brought a motion for leave to strike Robert’s pleadings, an order to amend her pleadings to include retroactive child and spousal support, and an order imputing income to Robert. Monahan, J. noted that neither party had completed the tasks set out in the endorsement of Mesbur, J. after the April 30, 2018 Trial Management Conference.

[41] Monahan, J. dismissed the applicant’s motions. A Trial Management Conference was set for January 11, 2019 and a trial scheduled to commence on January 28, 2019. No costs were ordered. Trial Management Conferences were held on January 11 and 21, 2019. Those appearances were helpful in streamlining the issues for trial. The trial was estimated to take eight days. It took fourteen days.

[42] Galina’s position on the support issue is that Robert’s income should be imputed at approximately $429,000, both retroactively and ongoing for support purposes. Her position is this amount fairly represents Robert’s past and current income net of 25% for expenses. There was significant evidence at trial about a reasonable percentage of expenses for Robert given that he is self employed as a realtor and therefore must incur expenses in order to make an income.

[43] Galinas’s evidence on imputing her own income was confusing. At first she testified her income should be set at no more than $35,000 per annum for support purposes. Later, she testified that her income should be imputed at $70,000 for support purposes. Her DivorceMate calculations show variable income in each relevant year ranging from a low of $16,000 to a high of $98,000. Robert requests I impute income of $75,000 per annum to Galina.

[44] Both parties gave evidence on s.7 expenses. The parties were advised at the outset that the court was not prepared to attribute any proportionate repayments to the other party without proper receipts. After some delays, both parties were able to provide some receipts for s.7 expenses.

CUSTODY AND ACCESS ISSUES

The Position of the Applicant

[45] Galina testified that her marriage to Robert was marred with physical and emotional abuse. Robert would become enraged at her in front of the children and smash items in the home. He controlled all of her spending. Post separation, he has not paid required or sufficient support, humiliated her in front of her friends and colleagues, made questionable choices in partners and frightened the children. Galina described Robert as malicious and blatantly dishonest. She testified that Robert has acted in bad faith and fraudulently misrepresented his financial position throughout this litigation.

[46] Galina told the court that she was a stay at home mother for 17 years. With minimal assistance from Robert, she raised their children and looked after all of their needs. She made all of the decisions related to the children’s education and extra-curricular activities. Robert trusted her to make those decisions.

[47] Post separation Galina has worked hard to re-establish herself as a real estate agent. When she met Robert, they were both real estate agents. Robert has had the luxury of building a very successful career in real estate while Galina cared for the children. Galina is certain that she can never earn income at the same level of Robert, given his connections in the industry and his experience.

[48] The parties agreed in 2014 to appoint Risa Ennis as a therapist to assist with their child-related issues. Galina described her appointment as necessary to allow Robert to rebuild his relationship with the children. However, according to Galina, that never happened.

[49] Galina describes the children as wonderful and a pleasure to be around. She is surprised at Robert’s sudden insistence on having parallel parenting and a relationship with the children. He simply did not seem to want one before this. The children want a relationship with him. They have told Ms. Innis this. But Robert does not follow up. He will not pay for R.K.’s university tuition or hockey and tennis for M.K. This sends a further message to the children that he does not care.

[50] Galina insists there are no real issues with respect to the children, Robert only raises these issues to divert attention from the fact that he is paying insufficient support. He has called the police on four separate occasions to complain about Galina’s alleged harassment of him.

[51] Galina was bitter about the fact that Robert has called Jewish Family & Child Services (“JF &CS”) on four occasions, claiming she was neglecting M.K. and failing to provide necessary food and shelter for him. On each occasion, they have conducted an investigation and closed their file because there is nothing to substantiate Robert’s complaints. JF&CS has given Galina gift cards for grocery stores because she runs out of food. According to Galina, this is due solely to Robert’s failure to pay support on time and to pay proper amounts of support.

[52] Galina complained to the court that Robert has not acknowledged all of R.K.’s accomplishments, including her admittance to the Queen’s Commerce program. She grudgingly admitted that Robert pays R.K.’s rent when she is school. Galina is concerned that Robert has not paid tuition for R.K. for the last two academic years. R.K. has had to rely on OSAP loans and grants. Galina testified that she paid $17,000 towards R.K.’s tuition in first year and $500 towards application fees and school tours. She seeks Robert’s contribution towards these amounts.

[53] Galina gave evidence that Robert is a bully and blames the children for things going wrong between them. He refuses to accept responsibility for what has happened to their relationship. He has yelled at the children and told them to get out of the car if they are resistant to his commands.

[54] Part of the 2014 consent order requires Robert to drive the children to their activities. Shortly after separation he refused to continue paying for their tennis lessons. According to Galina, this has been devastating to the children. M.K. is involved with basketball but Robert is not reliable in terms of taking him to games and practices. When he does drive M.K. to his games, he seems to feel that he is doing something special when it is not only court ordered, but something that any father would do.

[55] Robert’s parents appear to have washed their hands of the children. They do not call the children or give them gifts for their birthday. This is very sad, given the close relationship the children had with their paternal grandparents prior to separation. It was suggested to Galina during cross-examination that she told the children they could not see their paternal grandparents until after the divorce proceeding was over. Galina denied this but told the court that the children are old enough to decide for themselves if they wish to see Robert’s parents and she will not force them.

[56] When Robert does see M.K. for access, he will not spend quality time with him. He is always talking to clients on the phone or leaving M.K. alone or with his girlfriend. He will have his assistant order food in for M.K. and allow him to spend hours on his phone or playing video games. According to Galina, M.K. is also frightened of his father’s erratic driving and does not like it when his father sends him home alone in an Uber. This is why M.K. refuses to spend overnights at Robert’s home. Galina called it a safety issue.

[57] I asked Galina to expand on exactly what the “safety” issues were surrounding access that were allegedly causing anxiety for her and M.K. Galina testified that Robert sometimes yelled at M.K. or disparaged her in front of him, or left him alone for long stretches. All of this was denied by Robert.

[58] Galina told the court that she had always encouraged the children to see their father and to follow the court order. She conceded that told the children they did not have to see their father if his girlfriend Amy Baena was present. Access was for Robert, and not Robert and Amy to spend time with M.K. According to Galina, the children told her they did not feel safe when Amy was there.

[59] In cross-examination, Galina testified that she was not the one who put the restrictions on access related to Amy. It was the children’s request. This resulted from an incident at a family wedding in which R.K. was allegedly attacked by Amy. Galina was not present when this was alleged to have occurred. There was no evidence from any witness to corroborate this incident other than Robert’s evidence which denied that the incident happened anything like what Galina described. Later in her cross-examination testimony Galina conceded that she always let the children decide if they wanted to see their father.

[60] Galina was frank in telling the court that she has a temper and has yelled at both Robert and the children. Her explanation is that she is “European” and goes “off the handle” sometimes. The recording of the cell phone conversation with Robert which will be mentioned below demonstrates that Galina has perhaps glossed over the real extent of her anger issues.

[61] The sad result is that Robert has seen M.K. very little since the January 2014 order with some notable exceptions. Those exceptions include some March Break vacations and some other times when Robert says that Galina was satisfied with the support she was receiving. During those short periods, Robert saw M.K. every other weekend without exception and all went well. According to Robert, as soon as financial or court issues bubbled to the surface, Galina simply refused to cooperate with access. Only then did the so-called “safety” issues become a reason to decline access.

The Position of the Respondent

[62] Robert’s position is that Galina’s obsession with money (and support payments) has been played out using the children as pawns. As a result, his relationship with both children has been seriously affected. While he admits that Galina was the children’s primary caregiver during the marriage, he was self-employed and had a flexible schedule. He often worked from a home office. As such, he was available and was involved with the children’s extra-curricular activities, their schoolwork and their health and well-being.

[63] Robert testified that Galina has alienated the children from him as a form of revenge for him leaving the marriage and what she alleges is a failure to pay proper support. The children’s markedly changed attitude towards his parents is only one example of Galina’s manipulative and negative influence on the children.

[64] Galina fails to realize the detrimental effect of her actions on the children. Her constant retort is that access is up to the children and she will not force them to see their father. Robert submits that Galina has effectively abdicated her responsibility to foster a relationship between the children and Robert in favour of a position that leaves all of the decisions up to them. Given her vicious attacks on Robert’s character and lifestyle, it is not surprising that the children, and particularly M.K., have been influenced to remain away from their father.

[65] Robert’s evidence was that he has never had the access contemplated in the January 2014 consent order. In fact, he was denied access from the very first weekend it was intended to start. On that first weekend, he was required to give details of his address and where the children would be staying for the access weekend by 2:00 p.m. on the Friday afternoon. When he went to pick up the children, Galina refused to allow access to occur. Robert was informed by way of a text message from R.K. that he would not be having access that weekend as he had not provided the information about his new address until 2:30 p.m. rather than the court ordered time of 2:00 p.m.

[66] The problems with access have continued. Robert’s evidence is that Galina has never complied with this order. The police refuse to enforce the order as it does not contain a specific police enforcement provision.

[67] During the course of the trial, I requested that Galina speak to M.K. about a possible access weekend with his father on the weekend of February 2-3, 2019. Galina suggested that given M.K.’s age, that Robert communicate with him directly. Robert did so only to have M.K. respond that all communication concerning access had to go through his mother. Galina then reported that she spoke to M.K. and that he was only agreeable to seeing his father during the day for a few hours on Saturday or Sunday or both. He would not stay overnight.

[68] During the course of his testimony on February 5, 2019, and at my request, Robert reported what occurred with respect to his request for access on the weekend of February 2-3, 2019. Galina had told Robert that M.K. may be agreeable to seeing his father for a few hours on Saturday or Sunday. Robert tried calling M.K. on his phone on Friday February 1st and Saturday February 2nd to make arrangements for access. Robert told the court he left messages for M.K., saying he wanted to see him and that he loved him. As of February 5, 2019, M.K. had still not responded to his father. The weekend passed without any access taking place.

[69] Robert also reported that on Monday February 3, 2019 Galina mentioned at the conclusion of court that she needed to make arrangements to drive M.K. to basketball. Robert offered to take him. Galina ignored Robert and did not respond to his request.

[70] Robert told the court about ongoing problems with holiday access. In March 2016 Robert asked Galina if he could take M.K. away for March Break. Galina refused saying that he could only go if he took both children. The problem was that R.K. was already going on a school trip and was not available for the March Break trip proposed by Robert in any event. Galina still refused.

[71] Robert brought an emergency motion to obtain consent to take M.K. on the trip. The court declined the request because the trip had not actually been booked and the court felt that the matter was not an emergency. The court recommended, however, that M.K. spend March Break with Robert in Toronto. Galina would not allow access to occur if Robert’s girlfriend or parents were present at any time. Robert testified that multiple lawyers’ letters were exchanged on this issue. Robert’s lawyer continually pointed out that the January 2014 order did not contain any condition with respect to third parties being present during access. Ultimately, no March Break access occurred in 2016.

[72] In March 2017 Robert testified that he decided to approach March Break differently. He spoke to M.K. first rather than Galina. M.K. was happy about going. Galina grudgingly allowed him to go because M.K. was so excited about the trip. Robert tendered some beautiful photos (Exhibit 51) of him and M.K. together in Miami in March 2017. He said they had an “amazing” time. Robert told the court he was not on his cell phone during the trip and left M.K. alone in their hotel room only once for a brief time while he went out to buy balloons and a cake for M.K. on his birthday. After the trip, he prepared a collage of the photos and hung the collage in M.K.’s room in his house. It was clear from Robert’s demeanour during this part of his testimony that the Florida trip was very emotional for him. It was the most time he had spent with his son since separation.

[73] Robert testified that he and Galina attempted to devise a parenting plan with Risa Ennis. He refutes Galina’s allegation that he did not care about how much time he spent with the children. In fact, it was the opposite. Robert’s position was that he wanted equal time with the children during holiday periods. What he did not care about was how the division took place. That is, he did not mind if he had the same days or weeks for vacation and religious holidays each year or whether the times were alternated. He was clearly frustrated that Galina misinterpreted his willingness to be flexible as not caring about seeing the children.

[74] Robert complains that Galina has inappropriately involved the children in this litigation. He alleges that she tells them about the court proceedings and in particular shares financial details with them. The children tell their father that he is not paying enough support. They call him and ask for money for food because there is nothing to eat at their mother’s house.

[75] Robert called his mother, Sandra Kroll, as a witness. Mrs. Kroll advised that prior to separation she had a very good relationship with both of her grandchildren. She has five grandchildren in total. She had a particularly close relationship with R.K. because she is the oldest grandchild. M.K. is her only male grandchild. She also told the court that during the marriage she had a very good relationship with Galina whom she regarded as more of a friend than a daughter-in-law. She testified that she was always there to help Galina with the children when needed. She often took R.K. to school when she was young and was happy to care for the children when Robert and Galina were on vacation.

[76] Since separation, Mrs. Kroll was saddened by what has happened to her relationship with her grandchildren. She called the change “drastic.” She feels she no longer has a relationship with her grandchildren and that made her sad.

[77] Mrs. Kroll has had very little communication with R.K. since separation and when she does it is not pleasant. R.K. is not friendly to her and the conversations are short. Sometimes she texts R.K. but R.K. does not answer. Other times R.K. will send texts to her which are rude. As for M.K., she is unable to contact him unless he with Robert. She feels unwanted by her grandchildren.

[78] Mrs. Kroll testified that R.K. has called her since separation to ask for money. She complains to her grandmother about Robert and says he does not give her money. The last time she saw her grandchildren was in June 2018 at M.K.’s Bar Mitzvah.

[79] Mrs. Kroll recalled happier times prior to separation when Robert’s family would come over on Friday evening for Shabbat dinner. R.K. would light the candles and they said the blessings over the wine together. Her grandchildren have not come to her home for Friday night dinners, holidays or birthdays since separation.

[80] She recounted that there were times since separation when she offered to drive the children to their activities. Galina refused those offers of assistance.

[81] Robert’s mother described him as a caring and loving father. She is saddened by the effect of the separation on Robert’s relationship with his children and on his health. She has been devastated by what she describes as Galina’s influence on the children not to have a relationship with their paternal grandparents. She is aware that Galina did not want her and her husband to come to M.K.’s Bar Mitzvah and that without Robert’s intervention she would likely not have been able to attend. This saddens her as well. Mrs. Kroll feels helpless about the entire situation because she does not want to put pressure on M.K. and R.K. nor does she wish to get into the middle of the conflict between Robert and Galina.

[82] I see no reason not to accept Mrs. Kroll’s evidence in its entirety. She was honest about her feelings with respect to the distancing of her relationship with her grandchildren. While others may have been more vitriolic in their blaming of Galina for this, Mrs. Kroll acknowledged that Galina had been a good mother and it was clear this witness was trying to be objective in her testimony. She advised that if Galina had called her at any time during the last 7.5 years for help with the children, she would have given it, but no such call has ever come. Mrs. Kroll despairs about the future of her relationship with her grandchildren but was very conflicted about how to confront the surrounding issues.

[83] Ms. Caryn Zusman was called as witness by Robert. Ms. Zusman is Robert’s personal assistant. She has worked for him full time for three years. Ms. Zusman’s duties include answering correspondence, uploading listings onto MLS, dealing with clients, paying bills and any other duties as assigned by Robert. This means that on occasion Ms. Zusman assists Robert with his personal life, including paying personal bills and dealing with his children.

[84] Ms. Zusman knows the Kroll children and is aware of the access-related issues in this case. She described Robert as a great father. She recalled picking up Robert and M.K. from the airport after their March Break trip in 2017. They were both very happy and relaxed. She describes M.K. as a typical teenage boy who likes to spend time on his phone and playing videogames but he also loves playing basketball.

[85] Ms. Zusman testified that she is sometimes asked to take lunch to M.K. at school. This is because M.K. complains that there is no food at his mother’s house because his father does not pay support.

[86] Ms. Zusman recalled that R.K. had lived with her father in the summer of 2017. She testified that generally this went well. At times, there were conflicts between R.K. and her father because of car issues. R.K. was unhappy when she had to share her father’s second car with anyone. She tended to think of it as being for her exclusive use.

[87] Ms. Zusman works out of Robert’s home in his basement office. She is therefore very familiar with Robert’s home and its layout. She told the court that Robert has a three bedroom house so that each of the children have their own room. Sadly, the home is bigger than he needs as the children, and especially M.K., are rarely there. She could not remember the last time M.K. was at the home, although admittedly she is not there on most weekends.

[88] Ms. Zusman recalled a time during the summer of 2018 when M.K. complained again about there being no food in his mother’s home. She recalled that Robert took M.K. to the grocery store and bought a significant amount of food for him. He then took him back to his mother’s house to drop off the food. Galina refused to allow the food into the house. She insisted that Robert pay her the money instead. Robert was forced to return all of the groceries. Robert confirmed that this event occurred as described by Ms. Zusman. Galina did not refute these facts.

[89] Ms. Zusman has access to Robert’s email account so that she can review his emails and respond to clients. In the past three years she has seen many emails from Galina to Robert. She described Galina’s emails as daily demands for money. In particular, she recalled that Galina would sign M.K. up for expensive activities without consulting Robert. She would then send an invoice demanding payment. She never offered to pay her share, she wanted Robert to pay the entire amount.

[90] On several occasions Ms. Zusman has been involved in trying to arrange access pick up or drop off for M.K. with Robert. She testified that she has observed Robert’s frustration and upset when access was continually denied or thwarted. She advised that M.K. told her he was not allowed to see his paternal grandparents until this proceeding is concluded.

[91] Ms. Zusman was shocked about what Robert has endured from Galina. He bought and outfitted a house with bedrooms for the children, hoping they would come and visit. When they reach out to him, he goes out of his way to help the children the best he can. In return, he is treated despicably by Galina.

[92] Galina suggests that Ms. Zusman’s evidence should be given little weight because she is not objective. Ms. Zusman was candid about the fact that she did not like Galina and that she considers Robert to be one of her best friends. She told the court she does not like Galina because she has witnessed three years of emails from Galina to Robert which are belittling, demeaning and harassing. She called Galina a liar with respect the allegations that Robert is a deadbeat Dad who does not pay support. Ms. Zusman is the one who actually issues the cheque for support each month and often drops it off at Galina’s office. She testified that Robert has made all of his support payments and for Galina to say otherwise is pathetic.

[93] It is certainly possible to view Ms. Zusman as a less than objective witness given that Robert is her sole source of income, a close friend and because of her stated dislike of Galina. At times it was clear from Ms. Zusman’s voice and demeanour in the court room that her view of Galina is more than simple dislike. She despises Galina for what she perceives to be the wrongs perpetrated on Robert by her. As a mother herself, Ms. Zusman feels that Robert has been deprived of proper access to his children.

[94] Notwithstanding concerns about Ms. Zusman’s objectivity as a witness, I accept that she is truly concerned about the Kroll children. I also accept that, given her knowledge of Robert’s personal circumstances, there is no reason to doubt her testimony about the types of emails sent by Galina to Robert and the payments she makes for child support as directed by Robert. As Ms. Zusman quite rightly observed, Galina knows she reviews all of Robert’s emails. If Galina wanted private communication with Robert, she could have texted him, but chose not to.

[95] Robert was very concerned about Galina’s manipulation of his court ordered access. She imposes conditions on it as she sees fit such as prohibiting contact with his parents, his former girlfriend Amy and allowing the children to decide if they want to see Robert. Galina willingly acknowledged all of this. She testified that she knew what was best for the children and if they did not want to see their father, she would not force them.

[96] Further, she did not seem in the least concerned about the impact of the children not seeing their paternal grandparents. She allegedly needed to “protect” them from their paternal grandparents who had been mean to them. It was never clear to the court exactly what the paternal grandparents had done that so enraged Galina. Certainly Mrs. Kroll did not appear to the court to be someone who would intentionally hurt her grandchildren. In fact, she is most upset about Galina’s interference with her relationship with them.

[97] As for Amy Baena, Robert’s former girlfriend, the children were not to see her because of the “wedding” incident during which Amy is alleged to have attacked R.K. The parties’ versions of this event vary wildly. Robert insisted that R.K. had been rude to Amy who in turn told R.K. that she would not be spoken to in that manner. Robert then had to intervene as R.K. started to move towards Amy in an aggressive manner. Galina alleges Amy was the aggressor, and Robert that it was R.K. The fallout of this incident, however, is that Galina took the position that Amy could not be present during any access. She has never wavered from that position.

THE PARTIES’ CREDIBILITY

The Applicant

[98] Galina was a difficult and confrontational witness. She spent considerable time complaining about Robert and making serious allegations that Robert had committed fraud and made misrepresentations to the court concerning his income.

[99] However, when it came to evidence about anything that may have reflected negatively on her, she fought hard to divert, question and stonewall with respect to her answers. At times, she asked the court if questions directed to her in cross-examination were relevant (especially if it related to anything negative about her behaviour). At other times, she was defiant, rude, loud and disrespectful to both the court, Robert during his cross-examination of her and to witnesses she was cross-examining.

[100] On multiple occasions when Galina was cross-examining a witness she would interrupt their answer when she did not like the direction it was going, despite being admonished by the court about this practice. On other occasions, she prefaced her question with negative comments about Robert or about her views about the lack of credibility of a witness she was cross-examining. The court reminded Galina many times that it was not up to her to determine the credibility of witnesses.

[101] When Robert objected to the form or substance of any of Galina’s questions, she became defiant and argumentative. The court requested that Galina give Robert the courtesy of hearing out his objection so that a ruling could be made. Then, once the ruling on the objection was made Galina would argue with the court about the validity of the ruling.

[102] During Robert’s testimony in chief, Galina frequently jumped up and shouted out that Robert was lying. She was asked to sit down and reminded that she would be permitted a fulsome opportunity to cross-examine Robert. However, Galina persisted with this practice to the point where she was informed by the court that her conduct during the trial was unacceptable and would be commented upon in the judgment. This appeared to have little deterrent effect on Galina.

[103] At one point Galina became so outraged with Robert’s testimony she threatened to leave the trial. She was reminded that the consequence of doing so would mean that the court would have no choice but to accept all of Robert’s evidence as unchallenged. At another point, Galina informed the court that Robert’s testimony was so untruthful that she had decided not to cross-examine him as it would only result in him telling more lies. Galina was once again patiently reminded by the court that she should re-consider this decision as, again, it would result in Robert’s evidence being accepted by the court unchallenged.

[104] Galina has a narrow view of this case. The view is simply this. She is right about everything and everyone else is wrong. She is relentless in her criticism of others as it relates to this case but does not for one second accept that she should take any responsibility for the fact that the children have become distanced and perhaps even alienated from their father, or that this serial litigation may have something to do with her inability to compromise on anything.

[105] A few specific issues lend themselves to supporting my overall finding that Galina was not a credible witness and that all of her evidence should be rejected. Those issues are set out below.

The April 8, 2015 Telephone Conversation Between Robert and Galina

[106] Galina’s evidence initially was that she did not recall the conversation nor was it her voice. She did not accept the certified transcript of the conversation as accurate. I required that Robert play the recording in open court. What the court heard was nothing less than shocking. It was clearly Galina’s voice. She was literally shrieking at Robert and demanding money. Her profane language was disgusting and alarming. She refused to listen to Robert. In the course of the conversation, she made overt threats against Robert and his parents. A couple of noteworthy excerpts from the recording are set out below:

“The only way, you know what, the only way you can stop me is by fucking killing me.” “I hope you die a slow, slow fucking painful death. I hope you get fucking cancer.” “You have no idea what’s about to happen to you, this is my full time fucking job. Go to fucking hell.” “You’re the biggest fucking creep in this world and you’re gonna pay for the rest of your life because I’m going to make sure you lose your real estate license and your fucking mother and father are going to be on welfare. You understand that?”

[107] This conversation epitomizes the venom and atrocious manner in which Galina both regards and treats Robert and his parents. The fact that Galina initially refused to acknowledge that the recording was accurate or that such a conversation took place is typical of Galina’s attempts to deny any evidence that would tend to frame her in a negative light.

[108] Only when cornered with the fact that it was clearly her voice on the tape did Galina provide any explanation for her behaviour. Her weak and untenable excuse for such outrageous behaviour was that she was “European” and had a temper sometimes. Undoubtedly, this tape corroborates Robert’s testimony that Galina cannot control her temper and her anger. Her tendency to “punish” others, such as Robert’s parents, who do not comply with her demands, is clearly signaled in this recording.

[109] Further, on several occasions during Galina’s testimony she was reminded not to yell at witnesses, the court or just in general. On more than once occasion Galina apologized for yelling directly at me. It appeared that once on a rant, Galina had little or no control over her emotions. She screeched, cried, stamped her feet and threatened with little thought of how she may be perceived by others or the consequences of such behaviour.

Galina’s Financial Statement and Her Parking Tickets

[110] Galina did not swear an updated financial statement for this trial. She said she did not need to because nothing about her financial circumstances had changed other than her debt had increased.

[111] She was asked about her outstanding parking fines. Galina conceded that she currently had about $2,500 in fines. This is why she cannot have a vehicle registered in her name or rent a vehicle. She cannot afford to repay the fines. She blames this on Robert.

[112] The court enquired as to whether Galina understood the importance of an up-to-date sworn financial statement, especially where there were financial issues to be determined at trial. She told the court she understood but she deliberately did not include her parking tickets in her financial statement because she did not want Robert to find out about them. Further, she did not think they were relevant.

[113] This attitude is concerning to the court and raises issues as to whether any of Galina’s testimony related to financial issues can be relied upon. That is, it raises a concern as to what other items has she deliberately excluded from her financial statement because she did not want Robert to find out about them, or because she (not the court) determined whether they were or were not relevant.

[114] Galina complained bitterly during the trial that she did not have a vehicle and that this affected her ability to earn income as a real estate agent. She grudgingly admitted that Robert had, at her request, loaned her a car on a few occasions and in September 2018 for a period of a month.

[115] Galina was questioned by Robert about the parking tickets that she had incurred during the time she had possession of his car. Galina fiercely denied that she had accumulated any parking violations during the time that was using Robert’s car. It was suggested to her that in fact she had incurred $600-$700 in parking fines. She flatly denied this was the case. She insisted that she always paid for her parking when she was using Robert’s car. She then changed her evidence and said she may have received parking tickets but that was only because Robert refused to pay for a parking space in her building which cost $275 per month. In any event, the parking tickets would not have totaled anywhere near $600 to $700.

[116] I do not accept Galina’s evidence about the parking tickets she incurred when using Robert’s vehicle. I prefer the evidence of Ms. Caryn Zusman, Robert’s personal assistant on this point.

[117] Ms. Zusman testified that she has access to Robert’s bank account and if he incurs the occasional parking ticket she pays it for him as soon as he gives her the yellow ticket. However, in this case, Ms. Zusman never received the yellow tickets. The tickets came in the mail with an additional fine attached for non-payment. They totaled over $600. Robert asked her to pay them.

[118] Ms. Zusman was certain these fines were incurred by Galina because she knew that Robert had lent her his car during the period of time in which the tickets were incurred and she knew that the tickets were given out in the area in which Galina lives.

[119] Ms. Zusman told the court that Robert was going to co-sign a lease so that Galina could obtain a car but after the parking ticket issues arose, he decided this was not wise. She added that Galina is not appreciative of the things that Robert does for her. Robert concurred that the parking fine issue certainly gave him pause when deciding whether to lease a car for Galina in his name.

[120] Galina’s testimony about the parking tickets she incurred when Robert lent her his car is disconcerting. At first she denied they were hers. She then apparently decided it was best to blame the situation on Robert and insist it was his fault for not renting her a private parking space. There was no evidence that she ever offered to pay the fines, notified Robert about them in advance in order to avoid the additional fees or accepted any form of responsibility for them.

The Hotel Voice Mail Message

[121] Robert testified that he went to a Re/Max conference in March 2016 in Las Vegas. He took his girlfriend with him. Before he left he called his children and told them he would be away. He mentioned the hotel in which he was going to be staying.

[122] When he arrived at the hotel, he found to his dismay that his hotel booking had been cancelled. He was upset because he knew he had confirmed the booking well in advance. He enquired of hotel staff as to how the cancellation had occurred. Robert was advised that a woman who identified herself as his “wife” called the hotel and insisted the reservation be cancelled due to a family emergency. Robert was informed by the hotel staff that normally they would not cancel a reservation for anyone other than the person who booked the room, but in this case Robert’s “wife” appeared so distraught about the emergency they made an exception and cancelled the booking.

[123] Robert’s evidence was that the children must have told Galina where he was staying and he speculated she decided to cancel the booking when she found out he was going to Las Vegas with his girlfriend.

[124] Fortunately, the hotel was able to find Robert another room. The next day there was a voice mail message from Galina on his hotel room phone reminding him to pay his support. Robert played the voice mail message in court. It was clearly Galina’s voice. She asked that Robert be sure to pay his March 1, 2016 support payment. She was concerned about the payment since she knew he was in Las Vegas.

[125] Galina denied that she had anything to do with cancelling Robert’s reservation. She testified that Robert never calls the children before he goes away so she would have had no way of knowing what hotel he was staying in. While she did not deny that it was her voice in the message, she insisted that there was no evidence that it came from the hotel room. It could have been from any message she left for Robert.

[126] In response, Robert then played a video of his hotel room. The message could clearly be heard coming from the answering machine in his room.

[127] Based on Galina’s conduct during this trial and her ongoing denials of her appalling behaviour, I have no doubt that Galina cancelled the reservation and left the message in Robert’s hotel room. It is yet another example of her mean-spirited and vindictive behaviour towards Robert. Her continued denial of the obvious (in the face of recordings and videos clearly implicating her) makes it impossible to rely on any of her testimony.

The Criminal Charges

[128] Galina maintained that she had never been criminally charged with threatening death to Robert and that she had never been subject to a restraining order.

[129] In fact, Galina had been the subject of that serious charge as a result of a confrontation with Robert at one of M.K.’s hockey games. Her own lawyer confirms this in a letter dated March 21, 2014. It is true that Galina was not the subject of a restraining order but she was certainly subject to a non-communication condition as a term of her release. Galina attempted to downplay this incident at every turn. While the charge was ultimately withdrawn, Robert’s evidence was that this was only on the condition that Galina attend an anger management course. Galina denied that there was any such condition. Her evidence was that the entire situation never occurred and Robert was lying about everything.

[130] This is yet another situation in which Galina attempted to deny the obvious. She was clearly charged with a criminal offence and subject to bail provisions. Yet, she refused to accept that this was the case. Whether or not Galina actually threatened Robert at the hockey arena is not the issue here. The issue is that Galina will not accept responsibility for her behaviour and even when confronted with irrefutable evidence of her behaviour, prefers to blame everything on Robert.

The Respondent

[131] Robert was a calm and fairly organized witness. He took the court’s direction without argument and did his best to cooperate. He became emotional when talking about the children. While Robert likely had the right to be much more angry and resentful than he was, he seemed sadly resigned to the fact that his children did not want to spend time with him and that he was permitted to see M.K. only if he was taking him on vacation or if he was needed to drive him to basketball.

[132] Robert was clearly exasperated when describing how he had dealt with Galina’s anger and spending issues.

[133] Robert tries to do his best for Galina and the children, despite Galina’s appalling treatment of him. For example, Galina owed $5,000 in rental arrears in September 2018. Robert paid those arrears and entered into an agreement with Galina’s landlord that he would vacate the landlord/tenant proceeding the landlord had commenced against her. Robert continued to pay the regular monthly support but seeks a credit for the $5,000 at trial.

[134] Galina did not seem to be in the least bit appreciative of this gesture on Robert’s part, not to mention providing any explanation as to how she could have accumulated such arrears when she was working and receiving support.

[135] Robert also paid $1400 in the fall of 2018 to allow Galina reinstate her cell phone/internet/cable account which had fallen into arrears. M.K. had taken to sending Robert regular texts about the misery of having no television to watch and having to do his homework at the library in order to have access to the internet.

[136] Robert lent Galina his car for a month in September 2018. The result of that fiasco is described above. Galina incurred significant parking tickets which Robert has had to pay.

[137] Robert tried to assist Galina in leasing a car. Galina did not like the choice of car he made for her. Now Robert is refusing to assist with the leasing of a car because of the concern that the car must be put into his name because of Galina’s outstanding parking tickets. His fears are well founded that Galina will continue to incur parking tickets for which he will be responsible. Galina blames Robert for her lack of success as a real estate agent because she has no car, cannot pay her parking tickets and can no longer even rent a car. Robert cannot and should not be blamed for matters which are solely of Galina’s doing.

[138] Robert paid about $450 in November 2016 to put Galina’s insurance policy back into good standing. His testimony, which I accept, was that he did this because she asked him to, because she is the mother of his children, and because if the policy had lapsed it may have cost her more to get a new policy. Once the policy was in good standing, Galina advised that Robert’s generosity was suspect. According to Galina, the only reason he put the policy back into good standing was so that he could arrange to harm her and receive the policy proceeds. This was bordering on ludicrous since Robert is not the beneficiary of the policy. Further, there was no evidence that Robert had threatened Galina.

[139] Robert receives constant text messages from M.K. that there is no food in the house. Of course, Robert is sympathetic and does his best to provide some take-out meals or some money but Robert quite rightly told the court that he is at his wit’s end. He provides support to Galina but she cannot manage her money. He has done his best to help her out when she is in debt, but there is only so much he can do. It is sad indeed that M.K. is the one who regularly sends texts to his father complaining that he is not paying enough. Robert suspects that Galina asks him to do this, hopelessly placing M.K. squarely in the middle of an adult issue.

[140] I accept Robert’s evidence that the marriage was in a state of disarray for many years prior to separation. His evidence that Galina was verbally abusive to him if he did not allow her to buy the clothes and shoes she wanted rings true based on her behaviour at trial. The parties went to counselling well before the date of separation. I do not doubt that the counsellor walked out of sessions (as Robert described) because Galina’s behaviour was out of control.

Parenting Issues – Findings and Analysis

[141] I find that Robert has done his best in the face of an ex-partner who is angry, ungrateful and mistrustful. Nothing that Robert can do is apparently enough or in accordance with what Galina wants him to do. When he gives her money, she asks for more. When he asks for time with M.K., he is told that M.K. does not want to see him and that it is his own fault. When he offers to lease a car for her, the one he offers is not good enough. While certainly allowed to move on with his life, all of Robert’s romantic interests have been severely criticized by Galina and used an excuse not to allow access. His parents have gone from being close and loving with their grandchildren to people who are being punished for transgressions of which they are not even aware. I accept Robert’s testimony that there are times when he wonders if he can carry on.

[142] Overall, I found that Robert’s testimony was reliable. The witnesses he called from the Re/Max organization were helpful to the court and corroborated Robert’s evidence that he is a hard worker, a top producer and that the manner in which commissions are paid to him is regulated and in accordance with industry requirements.

[143] I also accept that this litigation has taken its toll on Robert’s emotions and his health. I found he remained relatively calm and objective about the many serious and baseless accusations Galina made about him, and remained composed in the face of cross-examination by her that bordered on shrill and badgering.

[144] Galina cross-examined Robert over a period of almost six days. She was relentless. She challenged Robert about numerous events which he had missed with the children. She was insistent that Robert had deliberately decided not to see the children for those events. For example, Galina asked Robert why he had not spent time with R.K. on her birthday on December 26, 2018. Robert’s answer to these types of questions was invariably the same; if Galina had allowed him to see the children, he would have.

[145] Galina tried to catch Robert out on answers about the children’s favourite foods, teachers or toys when they were young. Robert did his best and when he made an error, Galina used this to insist that Robert was uncaring and neglectful.

[146] Galina pointed out to Robert and the court that the children were “amazing people.” She could not understand why Robert was not more grateful or acknowledging of the wonderful job that she had done in raising the children as a single parent.

[147] Such comments only illustrated Galina’s narrow view of the world. She has set out to exclude Robert from the children’s lives and in large part she has succeeded.

[148] I find that Galina has intentionally interfered with Robert’s access to the children and put conditions on it which were not intended by the court order and not in the children’s best interests. Although there was significant evidence on this point, an email dated Friday October 21, 2016 from Galina to Robert says it all (Exhibit 75):

“As per our conversation Robert, you can take Max this evening if he agrees to it. The only contingency is that Amy Baena (your girlfriend) is not to be in Max’s presence, or have any contact whatsoever with him.

I will speak to Max when he finishes school as to what he would like to do and will get back to you.”

Galina’s insistence that access be left up to M.K. is inappropriate and contrary to the Ontario Court of Appeal’s views on a parent’s obligation to foster access. In Godard v. Godard, 2015 ONCA 568 at para 28 the Court of Appeal made it clear that parents have a positive obligation to comply with access orders even where the child allegedly resists.

Although a child’s wishes, particularly the wishes of a child of S.’s age, should certainly be considered by a court prior to making an access order, once the court has determined that access is in the child’s best interests a parent cannot leave the decision to comply with the access order up to the child. As stated by the motion judge, Ontario courts have held consistently that a parent “has some positive obligation to ensure a child who allegedly resists contact with the access parent complies with the access order”: Quaresma v. Bathurst, (2008), O.J. NO. 4734 (Ont. S.C.J.) at para.8. See also Campo v. Campo, 2015 ONSC 1349; Stuyt v. Stuyt, 2009 ONSC 43948 (Ont. S.C.); Stuyt v. Stuyt, 2009 ONSC 43948 (Ont. S.C.); and Hatcher v. Hatcher, 2009 ONSC 14789, [2009] O.J. No. 1343 (Ont. Sup.Ct.).

[149] There were similar emails and significant evidence about restrictions place on access if Robert’s parents were present.

[150] Galina does not follow court orders. She decides what is best for the children based on her own personal agenda and dependent upon whether she is getting what she wants from Robert. This has affected Robert’s relationship with the children to the point where the court has grave concerns as to whether it is even reparable at this point.

[151] Robert should not be blamed for this state of affairs. Galina’s anger and resentment towards Robert were clear from the moment the trial started. The most telling (and chilling) action on Galina’s part was at the end of submissions. Robert asked if I would consider ordering that he could take M.K. away for March Break and that Galina’s consent would not be required. He requested that this order be made pending the release of my judgment.

[152] I did not see any harm in making the order given the good time that M.K. and Robert had in March 2017, the three weeks of evidence I had heard, the fact that the 2014 consent order had no provision for holiday access, evidence of Galina’s previous refusal to allow Robert to take M.K. away for March Break based on some excuse which made no sense, and given the lack of meaningful access enjoyed by Robert to date.

[153] Galina’s reaction to my agreement to making the order requested by Robert was nothing short of stunning. She began crying and screeching. She yelled that M.K. could not go on such a trip without a session with his therapist. Further, there were “safety” issues given recent media coverage of an 11 year-old girl being murdered by her father. Galina’s protests were nothing short of histrionic rants, but they did highlight the exact behaviour that Robert had complained of. Galina was furious with the court for effectively ordering access that she had not approved of in advance. Her reaction was so completely over the top that I had to leave the courtroom in the middle of her ranting in order to ensure that matters did not escalate.

[154] Galina could not have done anything that underlined so perfectly the exact behaviour about which Robert and this court have complained. It played out in courtroom exactly as described. I, therefore, accept Robert’s evidence in its entirety that Galina has undermined his access by her own agenda. She has placed unreasonable restrictions on access which are not contained in the court order and which make no sense.

[155] While I make no particular finding about the wedding incident involving M.K. and Ms. Baena, this should not mean that Robert cannot get on with his life and introduce the children to other significant people in it. Robert must and can be trusted to make the right decisions for M.K. while he is in his care. This includes his decisions related to the people with whom he and M.K. may spend their time during access.

[156] There are other aspects of Galina’s behaviour which I find to be particularly harmful to the children and their relationship to their father (not to mention his business). Galina did not deny that in December 2017 she made a public posting on Instagram (an account to which her children have access). The post (which included two photographs of Robert) said as follows:

Robert Kroll = Family Responsibility Office (FRO) responsible for collecting past due CHILD & Spousal Support. I Ironically this person Robert Geoffrey Kroll, son of Sandra Kroll has NO qualms about neglecting his own family, amazing children…While he is off on another vacation!!!! Drives upscale new cars, goes to fancy restaurants, buys multiple expensive watches, clothing, supports his mommy, lives in an upscale neighbourhood, buys Real Estate in Toronto and abroad…plus much more! He has not paid Court Ordered, Family Responsibility Office Enforced Child Support, and says that “he should NOT”!!! Says NOT his responsibility or problem! “Dead Beat Father” “A Monster” “Thief”….

[157] Robert’s evidence about this post was that a number of people including clients and friends became aware of it. The wife of a prominent client was so incensed by the post that she forbade her husband from using Robert as his real estate agent in future.

[158] There are several very disturbing things about this post. First, and foremost this post was accessible by the children who both have Instagram accounts. Second, I accept Robert’s evidence that he received questions from clients about this. Robert is self-employed in a competitive market. He is concerned about the effect of such a post on his client base; for good reason.

[159] Finally, having heard evidence in this matter over three weeks, I find that the content of this post is simply wrong. Robert does pay his support and has generously provided extra funds to Galina to help her out when her lack of money management has left her destitute. His lifestyle is not the glamorous one that Galina claims (as will be dealt with below). This type of unscrupulous, brazen post only underlines the concerns this court has about Galina’s behaviour and the effect that her vitriol towards Robert has on the children.

[160] Another example is a post which Galina put on Instagram in December 2018 (not long before this trial) in which she photoshopped Robert’s photograph onto a government web page which showed photos of support payors registered with FRO who cannot be found. Galina typed in Robert’s name under his photo and wrote in the word “Reward May Apply” and GOOD PARENTS PAY!!!, Bad Parents maybe jail (see Exhibit 32). The photo sheet was also faxed from Galina’s office to Robert’s office addressed to “THE PUBLIC” (Exhibit 33).

[161] Galina did not deny that she posted this. After this was posted and faxed, Robert contacted Galina’s broker and manager. The post was taken down, but not for several days. Robert was again very concerned that the children had access to this post. A strongly worded cease and desist letter was sent to Galina by a lawyer engaged by Robert’s brokerage.

[162] Once again, I find that the content of the Instagram posting and the fax addressed to “THE PUBLIC” is not only false but illustrates Galina’s hostility and malevolence when it comes to Robert. She does not, apparently, think ahead about the effect of such a post on the children, the family, Robert’s business or her own reputation in the real estate business.

[163] Galina has consciously excluded the children from Robert’s life. I accept Robert’s evidence that when Galina and the children moved from the matrimonial home he was given no notice of the move, nor was he given notice of M.K.’s subsequent change of schools. Robert was not informed of any of this until he received a letter from Galina’s lawyer. As mentioned above, he was also excluded from dividing the contents of the home which Galina either took with her or left behind for disposal.

[164] Galina has been steadfast and unrelenting with respect to her criticism of Robert’s parenting. She accuses him of disinterest and neglect yet does not facilitate access. She insists that the 2014 consent order requires that Robert must drive M.K. to all of his activities yet when Robert offers to do so he is ignored. It is easy to see why Robert has become somewhat hesitant about even asking for access. The mere request is met with a maelstrom of criticism from Galina and a series of texts or emails in which Robert is ordered about as to how many hours he is “allowed” to see M.K.

[165] There are issues with Galina’s basic care of M.K. Robert has called JF& CS several times because of M.K.’s complaints that there is no food for him to eat. Galina refuses Robert’s offers of groceries. She wants the cash instead. While J.F & C.S. has closed their file with respect to all of Robert’s complaints, the matter does not end there. There is a concern that Galina’s serious lack of money management is impinging on her ability to fully provide for M.K.’s basis needs.

[166] With respect to M.K.’s best interests and specifically the considerations in s.24 of the Children’s Law Reform Act, the court adverts specifically to s.24(d)(e) and (f) as follows:

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child. (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing. (f) the permanence and stability of the family unit with which it is proposed that the child will live.

[167] As indicated above, there are concerns about Galina’s ability to provide certain basic necessities to M.K. I find that at times, she prioritizes her own needs over those of M.K.

[168] As for the plan proposed by each party, Galina had no real plan. Her plan was to keep the consent access order in place. I infer by this that Galina wants to continue to have control over access and blame Robert when he does not drive M.K. to activities. Further, without a holiday access provision, Galina can withhold her consent to travel at will in exchange for financial concessions as she has done in the past.

[169] Robert did have a plan. He wanted holiday access and some ability to make decisions for M.K. He wanted more involvement with M.K. He would like M.K. to live closer to him so he can spend more time with him. He has rented a house with three bedrooms so he could accommodate both children. Galina’s small Yorkville apartment has only one bedroom. It is difficult to comprehend how this accommodation can be adequate for her, her teenage son and their dog.

[170] There is also concern about the permanence and stability of Galina’s family unit. It is difficult to understand how Galina can currently meet all of M.K.’s needs. Her rent is frequently in arrears; she is often unable to pay her utilities and she cannot rent or own a car because of her parking infractions. This also affects her ability to earn an income as a real estate agent. I do not accept, as Galina submits, that this is all Robert’s fault. Galina’s income for 2018 is lower than other years since separation. If she is unable to earn money as a real estate agent, she must obtain other employment. She testified vaguely about going back to school but she had no specific plan for that either.

[171] Granting Galina’s request for sole custody therefore gives the court concern. She already acts unilaterally in relation to M.K.’s access to Robert. She controls when it happens and who may be there when it happens. The concern of course is that Galina wielding the sword of sole custody will simply be license for her to completely usurp any small amount of input Robert may have had into the decisions related to M.K.

[172] The court is in a difficult position in this case. For reasons which are unclear, there was never a s.30 assessment, a s.112 report, a Children’s Lawyer, a Voice of the Child Report, or any form of evidence which could be relied upon as representative of the children’s, and in particular, M.K.’s views and preferences. While both M.K. and R.K. receive therapy from Ms. Ennis regularly, it is a closed form of therapy and she is unable to divulge any information to the court.

[173] Further, the status quo of M.K. living with his mother for 7.5 years cannot be ignored. Without more information about M.K.’s views (which would be given some significant weight since he is now 14), the court has no option but leave M.K. residing primarily with Galina. This decision is not taken lightly given this court’s serious concerns about Galina’s manipulation of access, her attempts to sabotage Robert’s relationship with the children in order to gain financial concessions, and the issues highlighted above with respect to s.24 of the CLRA.

[174] However, it is this court’s view that Robert’s submission regarding parallel parenting is a viable alternative to awarding sole custody to Galina. That is, M.K. remaining in Galina’s primary care but expanding access to include holidays and allowing Robert decision-making in some areas. Certainly, some types of decision-making (such as consent to travel) should be completely removed from Galina, as she simply uses it a way to demand money or unreasonable concessions from Robert.

[175] Robert’s submission that he would like final decision-making over education, extracurricular activities and that he would be the custodian of M.K.’s passport make eminent sense in this case.

[176] Robert has spent over $200,000 in legal fees, attempting to enforce the consent access order from January 2014. He has had no success. It is this court’s view that the only way for Robert to have a chance at renewing his relationship with M.K. is to allow substantive regular and holiday access and for Robert to have court ordered decision-making over certain parenting responsibilities. Otherwise, nothing will change. Galina will interpret access as she sees fit and in exchange for concessions that are unrelated to access or parenting.

THE FINANCIAL ISSUES

[177] In order to resolve the myriad of support issues in this case, the court must determine the parties’ incomes and the quantum of support payable by Robert. This was a 16-year marriage in which Galina stayed home caring for the children most of the time. There is no question that she is entitled to spousal support. There is a question regarding the duration of spousal support. Robert has been paying court ordered support since 2014. Prior to that he was paying support either directly to Galina or by way of third party payments for expenses.

[178] While not solely determinative of the quantum of support, it is useful to understand the financial dynamic between this couple. Robert was always the main breadwinner. He has always earned more money than Galina.

[179] When the couple first met they were both self-employed selling real estate. Robert has been selling real estate since 1988. He is a respected and high volume producer for ReMax Realtron.

[180] After the parties’ marriage, Galina continued to work for a short time in the real estate business. The parties then had an opportunity to buy a coffee shop which Galina ran for several years. The shop was sold to Galina’s parents once R.K. was born. Robert testified that he encouraged Galina to go back to work once R.K. was in school. She refused. Robert complained that Galina insisted she have a night nurse for both children when they were infants as well as full time nanny. The parties had a full time nanny throughout the marriage even when Galina was not working.

[181] Robert’s testimony was that Galina’s spending during the marriage was out of control and ultimately contributed to the breakdown of the marriage. Her attitude was that she needed to keep up with her neighbours. She needed a nanny, $1,000 shoes, and expensive clothing. She spent her days at yoga and lunching with her friends. She would not entertain the idea of getting a job. She arranged for renovations to be done to the home without Robert’s knowledge or consent. When Robert complained, her response was that he should work harder and earn more money.

[182] Galina did not agree with this characterization of her spending. Her evidence was that Robert forced her to live on a shoestring. He gave her no money. She had to beg for money for groceries and household necessities. Her credit cards were often declined. Robert used money to control her. She is and was the victim of financial abuse by Robert. Post separation Robert did not deposit sufficient funds in the joint account to cover the mortgage and basic expenses. Galina was resentful that mortgage penalties and outstanding property taxes were deducted from the matrimonial home sale proceeds.

[183] Robert disagreed. He told the court he was a good provider but he did not have unlimited resources. They had to re-finance their matrimonial home a number of times to pay off personal debt. Galina would continue with her uncontrolled spending at Holt Renfrew despite Robert’s complaints. Finally, Robert resorted to only paying the minimum balances on the family credit cards. If he paid down the balance, Galina would simply charge the card back up to the maximum. Financial issues became so serious that Robert suggested they sell the matrimonial home and move to smaller home in a less affluent neighbourhood. Galina refused any proposal that involved an economizing of expenditures. Robert tried to explain to Galina that his income was unpredictable and variable. Galina would not listen.

[184] By way of corroboration, Robert introduced three Exhibits. Exhibit 57 were photographs taken by Robert of Galina’s shoe closet shortly after separation. The photos show boxes of shoes (with photographs of the shoes inside attached to the front) stacked to the ceiling. Labels such as “Givenchy” and “Chanel” can clearly be seen on some of the boxes and shoe bags. Exhibit 54 contains a card from Galina to Robert promising that she would not buy anymore shoes for “awhile” and that she wants to stay married to him. The tenor of the card is that Galina’s shopping habits were putting pressure on the marriage.

[185] In cross-examination, Exhibit 43 was put to Galina. This was a summary of Galina’s spending between May and December 2013. Galina was not at all pleased about being cross-examined about her spending. She was caustic and sarcastic in her responses to Robert, although she did not deny the spending. Some highlights of this spending include $3,407 on lingerie between May and December 2013, $2,822 for a two day trip to Florida in September 2013, $4,691 on clothing at George C, a high end Toronto clothing store in Yorkville, and $23,855 in cash withdrawals.

[186] While Galina’s shopping habits are not a substantive issue in this trial, they do go to her constant complaints that her lack of money is entirely Robert’s fault. As I have found that Galina’s evidence is not reliable, I accept Robert’s evidence that Galina is not a good money manager. Her complaints that all of her financial woes are due solely to Robert ring hollow in the face of Robert’s evidence and Galina’s lack of credibility.

[187] Robert has done his best to bail out Galina financially for the sake of the children. For example, in September 2018, he paid Galina’s rental arrears of $5,000. Around the same time he paid her $1400 so she could pay her internet and phone bill. Her internet had been cut off and M.K. was unable to do homework at home. Galina views these amounts as “loans.” She had no plan as to how she would pay them off. It was clear from her demeanour that she never had any intention of honouring the loans. She was adamant that these amounts not be credited to Robert for support. As Robert quite rightly pointed out, he seeks the credits against support because he has no other way of collecting from Galina. She doesn’t pay rent, her phone bills or her parking tickets, why would she repay Robert?

[188] In November 2016 Robert paid $500 to ensure that Galina’s life insurance policy did not lapse. While Robert’s intentions were reasonable (he wanted to ensure that the policy did not lapse as a new policy would likely have much higher premiums), his concern was met with outrageous allegations by Galina that Robert only paid the amounts in default so that he could collect on the policy when he arranged for harm to come to Galina. This was bordering on complete silliness since Robert is not the beneficiary of the policy.

[189] Galina accepts no responsibility for her choices. While it is clear she could rent in a less affluent part of Toronto for less money and likely more space, Galina was unaccepting of ways to change her lifestyle. She offered no logical explanation as to why she cannot pay her basic expenses when she is both working and receiving child and spousal support. Her mantra appears to be to spend everything she has and then go to Robert for more. If Robert refuses to pay up, Galina blames him for her financial woes.

The Report of Bonnie Prussky

[190] Ms. Bonnie Prussky provided expert evidence at trial with respect to Robert’s 2015 income. Her credentials as an expert were not challenged. The report on which she relied was dated November 20, 2017. Ms. Prussky did not provide a report on any other tax year. Her evidence (and Robert’s) was that he simply did not have the funds to do more than the 2015 report.

[191] Ms. Prussky found that Robert’s gross commission income in 2015 was $485,000 as reported on his T4A. Robert deducted expenses of $252,000 in that year, resulting in taxable profit of $192,000.

[192] Ms. Prussky’s view was that for support purposes, Mr. Kroll’s income should be $219,000. Ms. Prussky “added back” certain discretionary income and personal expenses totaling $14,591. This number was made up of additional meals and entertainment of $2,132, home office of $4,600 and telephone and utilities of $358. An additional $7500 was added back as a form of catch all for personal expenses which may not have been otherwise identified.

[193] Ms. Prussky testified that she reviewed the binder of invoices for Mr. Kroll’s expenses. In fact, the expenses he claimed for tax purposes were actually $5,000 lower than what was in his expense binder.

[194] The court asked Ms. Prussky why she had deducted a $30,000 RRSP withdrawal from Mr. Kroll’s income. She advised that since equalization had been settled (including RRSPs), including this in Mr. Kroll’s income would be a form of double dipping.

[195] Given Galina’s contention that Mr. Kroll had not provided court ordered disclosure, the court asked Ms. Prussky if, in her opinion, she had sufficient and proper information from Mr. Kroll to come to her conclusions. Her response was that she had what she required or she would have raised that with Mr. Kroll and in her report.

[196] Ms. Prussky was shown Exhibit 23. This was a letter from Kalex Valuations dated December 31, 2017. Galina had retained Kalex to do her own income valuation for Robert’s income. Unfortunately, Galina was unable to complete the retainer due to lack of funds. She requested disbursements from the court to assist with the cost of the valuation on two occasions prior to trial, but those motions were dismissed.

[197] Kalex did prepare the letter marked as Exhibit 23 for Galina. That letter sets out a list of some 36 documents which Kalex advised they would require in order to do a proper response to Ms. Prussky’s report. Galina argued that Ms. Prussky’s report should not be relied upon as she did not have access to many of the documents in the Kalex letter.

[198] Ms. Prussky was asked by the court whether she required the documents in the Kalex letter in order to come to her conclusions. Her response was no. First, she had the first 15 documents listed in the Kalex letter. Beyond that, the documents either did not relate to Mr. Kroll’s 2015 income or they did not relate to her engagement. Kalex never contacted her. If Kalex had been fully retained by Galina, she would have shared documents with them on Mr. Kroll’s instructions.

[199] Ms. Prussky was unshaken in her cross-examination by Galina. Ms. Prussky has testified many times in this court and I have always found her to be objective, professional and knowledgeable. There is no reason not to accept her report and her opinion in their entirety.

[200] Galina requests that the court reject Ms. Prussky’s report on several grounds. First, Ms. Prussky did not have the disclosure she required to complete the report. Second, the disclosure she did have was manipulated by Robert and his employer and therefore unreliable. Third, Ms. Prussky was not objective as she and Robert were high school friends.

[201] I do not accept any of Galina’s arguments for the following reasons:

a. I accept Ms. Prussky’s testimony that she had the documents she needed to complete the report. b. I do not accept that Robert’s disclosure was manipulated. I have accepted Robert’s testimony as reliable. Further, I do not accept that his broker or the ReMax organization was involved in some form of fraud or conspiracy, as alleged by Galina throughout the trial, in order to keep income out of Robert’s hands. c. While Ms. Prussky and Robert went to the same high school, they were not friends at school and have not had contact, other than this report, for 30 years. I do not accept that Ms. Prussky’s professional reputation or the conclusions in her report are in any way tainted by this dated connection.

The Evidence of Christopher Alexander

[202] Mr. Alexander is the Executive Director and Regional Director for ReMax Integra. ReMax Integra is the largest ReMax sub-franchisor. The office in which Robert works, ReMax Realtron, is one of Integra’s franchisees. There are 11,000 agents in the Integra jurisdiction.

[203] Mr. Alexander confirmed that an agent such as Robert can only receive income from one brokerage.

[204] Mr. Alexander was shown a document located at Tab 5 of Exhibit 6. Much time was spent on this document during this trial. It was originally introduced by Galina during her evidence-in-chief. The document is a print-out which shows commissions for Robert Kroll each year between 1990 and 2016. Mr. Kroll strenuously objected to this document going into evidence. He argued that it was not an accurate reflection of his gross commission income. Rather, it was gross commission for awards purposes which may include commission from other agents in order to achieve certain award levels. Indeed, the document does have an “Award” column which shows Mr. Kroll’s award level each year.

[205] Robert was concerned about how Galina obtained this document since it contains private information. Galina refused to provide the name of the person who had given it to her.

[206] Galina insists the document is accurate and should be relied upon. She is unable to divulge the name of the person who gave it her, as that person has since been terminated by ReMax for breaching internal privacy rules.

[207] Mr. Alexander was shown Tab 5 of Exhibit 6. His evidence was that this document is provided by the broker for award recognition purposes only. He testified that ReMax does not represent this report as accurate for T4A reporting purposes. He told the court that brokerages could alter the numbers in awards reports because there could be teams of agents reporting under one person or income might be moved if an agent is very close to a certain award level.

[208] Prior to 2017, agents could report commission income for awards purposes as an individual agent even if that agent’s commission income was from a “team” of agents. That is no longer permitted. If commissions are from a team, they must be declared as such for awards purposes. None of this would affect an individual agent’s T4A which is always their personal commission income.

[209] Mr. Alexander advised that the information in the report at Exhibit 5, Tab 6 is confidential information available only to brokers. If an individual agent wants such a report about their own income, it must be requested from the broker and the agent must sign a release.

[210] Mr. Alexander testified that Galina had contacted several people in his Operations Department looking for information about Robert. All of her requests were denied. She called Mr. Alexander on his cell phone. He asked her who gave her the awards report. She gave him a name which turned out to be incorrect. A full investigation was done and ultimately the correct person was identified and terminated for cause.

[211] Mr. Alexander told the court that Robert was one of their longest standing and best agents. He is not aware of any complaints about Robert to his broker or to the Real Estate Council of Ontario.

[212] I see no reason not to accept Mr. Alexander’s evidence. He was straightforward, knowledgeable and not shaken in cross-examination. While the document in Exhibit 6, tab 5 already had problems with respect to both hearsay and provenance, the testimony of Mr. Alexander cements this court’s view that it cannot be relied upon for any purpose with respect to determining Robert’s income.

The Evidence of Cameron Forbes

[213] Mr. Forbes has been in the real estate business since 1989. He has been the General Manager of the Realtron brokerage since April 2013. Realtron has nine offices and 880 agents. As part of his duties, Mr. Forbes deals with the general supervision and direction of agents as well as complaints and financial issues. He is a Certified Management Accountant by training.

[214] Mr. Forbes explained that each agent’s T4A is issued by the Realtron internal accounting system and that they are 100% accurate. The T4A represents the closed and collected gross commission for each agent in each tax year. He confirmed that the T4A always represents an individual agent’s income and never includes any manipulated team income for awards purposes.

[215] Mr. Forbes confirmed that agents have certain expenses which are deducted “off the top” by ReMax. This includes brokerage and admin fees, desk fees and other expenses billed through the office such as sign installation and website design. Beyond that, each agent is a sole proprietor and can deduct further personal and business expenses. In his experience, Mr. Forbes testified that total expenses can be as high as 60% to 70% and as low as 40%. In Mr. Forbes’ view, it would be hard to make a reasonable income as a real estate agent without incurring expenses of at least 40%.

[216] In his opinion, once an agent is earning commission of at least $250,000, an office assistant is needed to grow business. No one is forced to hire an assistant but not having one would mean that an agent earning a lot of commissions would be missing out on face-to-face time with his clients. His view was that an assistant would be working anywhere from 20 to 40 hours a week and cost about $25 per hour.

[217] Mr. Forbes confirmed that he is not aware of any complaints against Robert from the public, his brokerage or other agents. There has never been any issue of Robert receiving cash or money outside of his brokerage.

[218] Mr. Forbes reiterated the evidence of Mr. Alexander that awards income is irrelevant to income reported by an agent to the Canada Revenue Agency.

[219] Mr. Forbes told the court that overall the Toronto real estate market is slower than the 2017 peak. His brokerage is down overall about 30-35%.

[220] I found Mr. Forbes to be a credible and knowledgeable witness. He confirmed similar points to Mr. Alexander with respect to awards income v. T4A income. I am not at all persuaded by Galina’s argument that I should rely on the document at Exhibit 6, Tab 5. I am also not persuaded by her continued insistence that Robert’s T4A is somehow manipulated and that Mr. Alexander and Mr. Forbes are “in on it.” I accept that all of Robert’s income is reported through his brokerage (including his referral income) as required. His personal commission income is reported on a T4A that has not been manipulated and is not the result of any form of collusion with ReMax management.

[221] I also accept Mr. Forbes evidence with respect a reasonable range of expenses for agents and the necessity of having an assistant at a certain level of commission income.

[222] Galina’s cross-examination of Mr. Forbes was lengthy, petulant, and often irrelevant. The strength of his evidence was not affected in any way on cross-examination.

The Evidence of Alex Pilarski

[223] Mr. Pilarski and his brother are the owners of ReMax Realtron. He has been in the real estate business since 1985 and currently manages 1000 agents. He has known Robert for 30 years. They are business associates and friends.

[224] Mr. Pilarski confirmed that an agent can only earn income from one brokerage and that their annual closed deal commissions are reported via a T4A. He also confirmed that reports concerning rewards income have nothing to do with income reported for tax purposes on a T4A. If Robert was receiving cash income or any income outside the brokerage, it would be a violation of RECO regulations and grounds for termination.

[225] Mr. Pilarksi testified that T4A income is not the same as line 150 income as all agents have expenses to earn income, including the 5% “off the top” that all agents must pay to their broker.

[226] Mr. Pilarksi has met with Galina at least twice to try to reconcile the dispute concerning Robert’s income. His evidence was that Galina was unreasonable and would not listen to him. She had certain numbers in her head with respect to what Robert’s income should be which Mr. Pilarski testified was the amount Galina wanted to live on and not Robert’s actual income. He blocked her emails and calls over two years ago because he was tired of what he called her “nonsense.” He told the court that Galina had sent many requests to his staff and his office requesting personal and private information about Robert’s income. Without a court order requiring him to disclose information, he declined all of Galina’s requests.

[227] At one point, Galina sent a garnishment form to Mr. Pilarksi’s office, claiming that he should honour it. It was clear that Galina had simply obtained the garnishment form off the internet. There was no court order associated with the garnishment. She also threatened motions against Mr. Pilarski’s business if he did not comply with her demands for personal information about Robert (Exhibit 113).

[228] I found Mr. Pilarski to be credible witness. He was clearly frustrated with Galina and sympathetic to Robert’s situation. However, his testimony regarding income reporting for his brokerage was both believable and consistent with the testimony of Mr. Forbes and Mr. Alexander.

Lifestyle Issues

[229] Galina complained bitterly throughout this trial that it was impossible for Robert to maintain his post separation lifestyle on the income he claimed he was earning.

[230] She focused on several areas which can be summarized as follows:

a. Robert drives expensive cars such as Bentleys and Porsches. He owns multiple vehicles. b. Robert is able to rent a large three-bedroom home. c. Robert takes many vacations outside of Canada. d. Prior to support being court ordered, Robert failed to pay the mortgage, taxes and utilities in relation to the matrimonial home but was able to afford a furnished penthouse. e. Robert is able to eat at nice restaurants and afford nice clothes. f. Robert belongs to Mayfair tennis club and takes expensive tennis lessons. g. Robert owns two investment condominiums for which he receives rent. He purchased both post separation.

[231] Robert responded to all of these allegations. He pointed out that he does not live a lavish lifestyle. He does not drink alcohol or go out for fine dining. He works all the time. He will have an occasional business meal with a client but nothing fancy. He has a household budget that he tries to adhere to.

[232] Robert does own two condominiums that he purchased post separation. Neither has significant equity and he claims both as losses for tax purposes, as the rent does not cover all of the expenses. When asked why he does not allow Galina and M.K. to live in one of them, he was frank when he said that Galina does not pay her rent, so why would he?

[233] Robert does not agree with Galina’s characterization of the expenses he paid post separation. His evidence was that Galina wanted him to pay for all of the household expenses, her car and give her another $5,000 per month in support. He simply could not afford that. Further, if he deposited money in their joint account, Galina would spend it. She always had the credit cards at their max. He did the best he could in the face of Galina’s out of control spending.

[234] His vacations are mostly business related. He attends several ReMax conferences and seminars each year for which he can write off the airfare and hotel expenses. He did go on one vacation post separation which was paid for by his girlfriend Amy Baena. Galina has also gone on vacation post separation.

[235] Robert does not own his home. He rents his home for $3,450 per month. Of this amount he writes off $1,450 per month for his home office in the basement. He rented this home because it had a large basement suitable for a home office. His assistant works there and he has his office equipment and computers there.

[236] Robert admitted that he has had a Bentley and three or four Porsches since separation. He has a friend in the luxury car business who allows him to effectively rent a luxury car for an interest only fee for three or four months in the summer. It costs about $1200 to $1400 per month. He explained this as his only indulgence. He likes to drive these types of cars to impress clients. He doesn’t own them and gives them back at the end of the summer. They are really just for show.

[237] Robert does belong to the Mayfair tennis club. It costs about $115 a month. He occasionally takes a tennis lesson which costs $75 per session. Once in a while he will have their breakfast special which costs $4.99.

[238] I do not find that Robert is living beyond his means. Even if he was, he is paying his court ordered support obligations (and more). His financial decisions may have resulted in him owing money to CRA but as long as he pays his court ordered support as a priority, the court is not necessarily concerned about his occasional Porsche rentals.

[239] Further, I do not find that Robert’s lifestyle is inconsistent with his income. His home is not luxurious (photos were presented at trial) and other than a modest tennis club membership and short-term luxury car rental Robert does not appear to be spending vast amounts of money on himself. As will be explained below, I do not find that income should be imputed to Robert. He is paying his support and his basic living expenses and working hard. Galina’s allegations about Robert’s alleged luxurious lifestyle are petty and without foundation.

Disclosure Issues

[240] A considerable amount of time was spent by the parties at trial accusing one another of failing to comply with court orders for disclosure. I will review each party’s allegations in turn.

[241] In January 2014, Justice Frank ordered that if no agreement could be achieved in relation to Robert’s income, Ms. Prussky was to prepare a report.

[242] As early as August 23, 2016, Myers, J. noted that Galina had not filed an updated financial statement which would have assisted the court with what she had done with the “substantial” proceeds of the matrimonial home she had received, the $96,000 in income she had earned and the after tax support of $32,000.

[243] Indeed, by the time of trial Galina had not provided an updated financial statement. She told the court she did not need to because the only thing that had changed was an increase in her debts. As outlined above, there were other changes to Galina’s financial situation which she deliberately kept from Robert, such as the extent of her parking fines.

[244] As early as August 2016, Robert asserted that Galina had failed to provide proper disclosure. At the long motion heard by Harvison Young, J. on December 15, 2016, Robert again asserted that Galina had failed to provide disclosure and outstanding undertakings. By the time of that motion Galina had brought a prior motion to strike Robert’s pleadings for failure to provide an income valuation and certain key disclosure.

[245] In Harvison Young J.’s reasons, she is critical of Robert for not having provided an income report despite the order of Frank, J. in January 2014. She is also critical of Robert not having attended for questioning. However, at trial Robert explained that he did not attend for questioning because Galina had provided no disclosure. Further, there was no actual requirement by Justice Frank that an income valuation be provided. Her endorsement indicated that Ms. Prussky would deliver a report if she and Mr. De Bresser (presumably Galina’s valuator) could not come to an agreement. Justice Frank’s endorsement also did not specify which tax year or years the income report was to be based.

[246] It was noted by Croll, J. in endorsement dated October 26, 2017 that Galina had not pursued questioning of Robert and that her request to strike his pleadings on that basis should be dismissed.

[247] In September 2017, the parties were before Backhouse, J. who endorsed that Galina had signed an agreement accepting money from Robert in lieu of having to obtain an income report. This is consistent with Robert’s evidence at trial which was that he had set aside $10,000 for the income valuation. Galina was in dire need of support and he entered into an agreement with her to forgo the income valuation and give her the funds he had set aside. He thought this would benefit his children more than an income valuation.

[248] In March 2018, Kruzick, J. heard Galina’s motion for trial disbursements. He noted a concern that her most recent financial statement was both undated and unsworn. She had also provided no proof of income in the form of tax returns. Although the financial statement was later sworn, Kruzick, J. remained unsatisfied as to Galina’s income and financial circumstances.

[249] Kruzick, J. dismissed Galina’s motion on the grounds that she had failed to show that the funds she sought were reasonable and necessary given her financial circumstances.

[250] In November 2018 Galina sought to strike Robert’s pleadings based on a failure to provide disclosure. Once again, this request was dismissed by the court on the grounds that the court felt that Robert was making his best efforts to comply with Galina’s disclosure requests.

[251] It is of note that at the Trial Management Conference on January 11, 2019 there was no notation that Galina was complaining about a lack of disclosure. Only at the second Trial Management Conference on January 21, 2019 did Galina indicate that she had not received sufficient disclosure. Robert’s evidence was that he had already delivered the required disclosure but he offered to make duplicate copies. Galina said she would not accept them.

[252] Ms. Zusman swore an affidavit dated January 9, 2019, indicating that she had delivered a complete copy of Robert’s disclosure to Galina’s workplace on December 17, 2018 at 5:30 p.m. Ms. Zusman left the banker’s box of documents with the receptionist. Galina claims she never received it. Ms. Zusman confirmed this evidence at trial. She explained that she when she went into Galina’s workplace to deliver the box of disclosure she told the receptionist that she had a box of documents for Galina. As Ms. Zusman was leaving the office, she heard the receptionist calling for Galina.

[253] Ms. Zusman was shocked when Galina alleged that she had never received the box of documents. Fortunately, she had electronic copies of everything as well as an index. She printed everyone out again and took them to Galina’s office. This time she videotaped the delivery which she now does on each occasion as a result of Galina’s baseless denials.

[254] It should be noted as well that Robert’s evidence at trial, which I accept, was that all of this disclosure had been delivered to Galina’s lawyers many times over by his previous lawyers. Galina flatly denied that this was the case.

[255] What was most interesting at trial was that, at various times, Galina put documents to Robert during his evidence that she claimed she had never received as disclosure. At one point, when questioned by the court about this coincidence, she advised that she had only recently had the time to go through some documents and “found” some documents of interest. Those same documents are the ones she claimed to have never received.

[256] I do not accept Galina’s evidence concerning Robert’s lack of disclosure. Galina tried several times over the last 7.5 years to have Robert’s pleadings struck for failing to provide disclosure. She had no success. Rather, I find that the complaint about disclosure is yet another of Galina’s attempts to blame everything on Robert. I find that he has done his best to comply with disclosure requests and, specifically, that ALL of the required disclosure was delivered to Galina prior to trial. I reject Galina’s contention that, while Robert claims he delivered all of the disclosure listed in his chart dated November 14, 2018, in fact he did not.

[257] I am unable to conclude, as Galina suggests, that Robert’s evidence is unreliable because he has failed to provide proper disclosure to the court. Robert provided significant disclosure. His income and records were confirmed by Ms. Prussky and by the witnesses from ReMax.

[258] Galina cross-examined Robert at length about his disclosure. Robert does not deny that he was subject to several court orders for disclosure. The problem was that once those orders were made, the parties would start to negotiate. They would come to verbal agreements (like the one where Robert gave Galina the $10,000 he had set aside for Ms. Prussky’s report) and Robert would not follow through with disclosure on the understanding that it was not required to as a result of impending settlement. However, when the parties had an argument, or when Galina did not like the direction in which settlement negotiations were headed, she would go back to court and claim that Robert was in breach of disclosure orders.

[259] In contrast, I find that Galina has not been forthright about her disclosure. She has not provided an up to date financial statement (as outlined above). I accept Robert’s evidence that her financial statement from 2016 is not accurate as it only discloses one bank account. Further, Galina stated that certain accounts did not exist and then later produced statements from those accounts. The bank accounts she did provide were redacted and no accounts appeared to show where Galina was depositing her support payments. Galina has failed to provide the documents requested in Robert’s Request for Information dated September 2, 2016 except for the 2016 incomplete financial statement and recently, some income tax returns.

[260] In short, Galina’s scant disclosure raises more issues than it resolves.

What is Robert’s Income for Support Purposes?

[261] Galina alleges that Robert’s reported income for tax purposes should not be accepted as his income for support purposes for four main reasons:

a. He has income from other sources such as an income property in Arizona, cash from real estate deals, rental income and mortgages; b. He diverts income to his mother; c. His employers are not reporting his full income to help Robert out because they are all friends; and, d. He unrealistically deducts expenses from his self-employment income.

[262] Section 19 of the Child Support Guidelines (Ontario) permits the court to impute income to a support payor in appropriate circumstances. Those sub sections of section 19 that apply to this case would be as follows:

(d) it appears that income has been diverted which would affect the level of child support to be determined under the Guidelines; (f) the parent or spouse has failed to provide income information when under a legal obligation to do so; (g) the parent or spouse unreasonably deducts expenses from income.

[263] The issue of Robert’s alleged failure to provide disclosure has already been dealt with above and therefore I find that section 19 (f) does not apply.

[264] For the reasons set out below, I do not accept that section 19 (d) or (g) apply. Specifically, I do not accept any of Galina’s contentions and especially her position that Robert’s income for support purposes should be his gross income minus expenses of 25%.

[265] Robert is an experienced real estate agent. He knows the rules. If he was accepting cash on the side for real estate deals, he is well aware that that is prohibited and he could be the subject of disciplinary proceedings or license suspension as a result. This was confirmed by Mr. Alexander and Mr. Forbes. I accept Robert’s evidence that his sole source of income is commission from deals which go through his brokerage.

[266] Sandra Kroll testified on this issue. Her evidence was that she has been a real estate agent with Realtron for 32 years. She and Robert often work together and help one another out. They sometimes split commission if they have both worked on a listing. She has never received income of Robert’s through ReMax and given it back to him to avoid it showing as part of his income. Since 2014, ReMax has required that Mrs. Kroll receive a T4A for any commission income earned through Robert’s listings.

[267] I accept Mrs. Kroll’s evidence. Although she was aligned with Robert because he is her son, her evidence was given in a straightforward manner. She was certainly a more reliable witness than Galina. As such, I reject Galina’s allegation that income should be imputed to Robert because it is being diverted through his mother.

[268] As for rental income, it is clear from Robert’s income tax returns that he is operating his condo properties at a slight loss. As an experienced realtor, it is Robert’s view that the investment is a worthwhile and long term one. There was no expert evidence one way or the other on this point. As such, having found Robert to be a credible witness, I also accept that the rental losses he reports for tax purposes are accurate and that he does not earn additional income (at least at this time) through those properties.

[269] On separation Robert had just over $130,000 in RRSPs. These have been completely depleted. Prior to their depletion, his RRSP (or at least part of the portfolio) was invested in private mortgages through B2B Bank Financial Services. Statements for these investments from 2012 were provided via Exhibit 123. This is clearly a legitimate RRSP investment. While Robert earned income on that investment, the income and capital are long depleted. I do not find that Robert now earns income on any private mortgages.

[270] I accept that Robert’s financial statement sworn January 3, 2019 is true as per his trial testimony. He does have a shareholding interest in a company in Arizona which he deposed was worth $75,000. He does not earn income from this investment.

[271] I have already reviewed the testimony from Mr. Forbes, Mr. Alexander and Mr. Pilarski. These witnesses were experienced and highly placed owners/executives in the ReMax organization. It would defy logic that any or all of these individuals would manipulate Robert’s T4A income to assist him in reducing income for support purposes. I reject entirely Galina’s contention that there was some form of conspiracy within the ReMax organization to deprive her of rightful amounts of child and spousal support. The more realistic view is that these witnesses do not treat Robert any differently from any other ReMax agent in terms of reporting his income to CRA. They all recognize that a failure to do so would risk both their reputation and incur other serious sanctions for the ReMax organization.

[272] Galina does not believe that Robert should be entitled to deduct more than 25% of expenses from his gross income for support purposes. This is not realistic. Mr. Cameron Forbes testified that expenses for agents vary. 70% of gross income would be in the high range. A minimum amount of expenses (30-40%) is needed to earn any amount of income. Every agent must pay a brokerage fee of 5% to ReMax plus other direct expenses to ReMax. The agent then has his/her personal expenses. In Mr. Cameron’s view, once an agent is earning in the range of $250,000 in commission, it is difficult to operate without a personal assistant.

[273] In cross-examination, Galina suggested to Mr. Forbes that an agent could share an assistant or hire someone part time. Mr. Forbes was firm in his view that once commissions of $250,000 are earned, a full time assistant is needed to free up the agent for direct contact with their clients. In his experience, most assistants are paid in the range of $25 per hour.

[274] Ms. Zusman (Robert’s assistant) gave evidence. She testified about the many things she does for Robert. I accept that, as per Robert’s evidence and that of Mr. Forbes, an agent earning at Robert’s level needs an assistant so that he can maintain contact with a wide circle of clients, search for new clients and complete all of the required paperwork for house sales and purchases. I accept that in order for Robert to earn the income he does, he needs a full time assistant and that her salary of $52,000 per year is not unreasonable given her responsibilities and Robert’s wide circle of clients. However, this is only one aspect of Robert’s expenses.

[275] Ms. Prussky reviewed Robert’s expenses in 2015. As set out previously in this judgment, she added back certain amounts to Robert’s income for support purposes. Overall, she was satisfied that the expenses claimed by Robert were reasonable and that his income would likely not change for tax purposes even if he was audited.

[276] In 2015 Robert earned $485,000 in gross commissions and reported net income of $196,000. After Ms. Prussky’s add backs of $14,000 and based on her report, Robert’s 2015 income for support purposes should be $219,000. As indicated above, I found Ms. Prussky to be a qualified and reliable expert witness and I accept her testimony and the contents of her report without hesitation.

[277] Robert suggests that expenses of 40% be deducted from his T4A income for each of 2016-2018. His actual net income claimed in each of those years works out to between 37-41% net profit. I see no reason not to accept Robert’s proposal in this regard. It aligns with the results of Ms. Prussky’s report and is at the low end of what Mr. Forbes testified that most agents deduct in order to earn an income.

[278] Using the 40% deduction from gross commission earned in each of 2015 to 2018 would result in income for support purposes for Robert of, $189,636 in 2016 ($474,090 - $284,454), $202,126 for 2017 ($505,315 - $303,189), and $184,541 in 2018 (estimated).

[279] I do not accept, for reasons already explained above, that the document at Tab 5 of Exhibit 6 has anything to do with Robert’s income for support purposes. It was obtained by Galina in a manner that resulted in the termination of the person who provided it to her. The ReMax witnesses called by Robert all acknowledged that this document was a printout that related to rewards income and not actual commission earned for T4A purposes. Robert was shocked and upset that this document was relied upon by Galina and also requested that the court not rely on it given that it was both hearsay and completely unreliable.

[280] Robert’s estimated 2018 income was verified by Ms. Tracy Zigelstein. Ms. Zigelstein has been an administrative manager at ReMax for 20 years. As Robert’s T4A for 2018 was not yet available at the time of trial, Ms. Zigelstein provided a report which she generated and which showed the commission earned by Robert on each deal in 2018. Ms. Zigelstein testified that although she had the authority to print out the report, she did not have the authority to manipulate any of the numbers in it without generating a new report and her name showing up beside the change. Ms. Zigelstein confirmed that Robert had not asked her to change any of the numbers in the report nor would she have changed any numbers on his request.

[281] There is no reason not to accept Ms. Zigelstein’s testimony. She is an experienced manager with ReMax and one of only five or six people at ReMax authorized to print out these types of reports. I accept that none of the numbers were changed and that they represent (to the point of trial), Robert’s commission income in 2018 of $461,353.

What is Galina’s Income for the Relevant Periods?

[282] Galina’s income has been extremely variable. In 2017, Harvison Young, J. (as she then was) imputed income of $200,000 a year to her.

[283] In 2015 Galina’s gross commission income was $95,000 and her net income after expenses was $63,383. In 2016 her gross commission income was $127,612.50 and her net income after expenses was $39,099. In 2017 her gross commission income was $130,705 and her net income after expenses was $33,581.

[284] It should be noted that in 2016 and 2017 she deducted significantly more than 25% of expenses from her commission income. She asserted at trial that 25% should be the amount of expenses deducted from Robert’s income for support purposes yet she deducted at least 70% in expenses in both 2016 and 2017 from her own income.

[285] Galina’s T4A income for 2018 was $21,235.87. She blames Robert for this drop in income claiming that it is his fault that she does not have a vehicle and cannot earn income.

[286] In fairness, however, Galina was prepared to accept that income of $70,000 should be attributed to her in each of 2015, 2016, 2017 and 2018. Robert suggests that income of $75,000 be attributed to Galina for each of those years. Given the variation in Galina’s income, her ability to earn income and the fact that I reject that her reduction in income this year has anything to do with Robert, income of $70,000 shall be imputed to Galina for each of 2015, 2016, 2017 and 2018.

What Level of Spousal Support Should be Calculated?

[287] As of the date of separation Galina was 45 years old. The parties resided together for 15 years from November 1995 to July 2011. The duration of spousal support would be anywhere from 8 to 16 years from the date of separation.

[288] Galina has shown an ability to earn significant income on her own. She was working as a real estate agent when she met Robert and earned a good income in 2013 when she first returned to work. Further, M.K. will be going to high school in September 2019. R.K. has not lived with Galina full time since September 2016 when she commenced university.

[289] As support was settled up to the end of 2014, it can be assumed that Robert paid support for 3.5 years to that point. He has paid support for another four years and three months since then or almost 8 years

[290] During the period when both children were residing with Galina full time (January 2015 to August 2016) spousal support should be paid in the mid-range. Thereafter, in the low range given Galina’s work history and the fact she was caring for only one child.

[291] This is not a case for compensatory support. Galina is working at the same type of employment she was when she met Robert. She appears to have had no problems re-integrating into the work force. She has suffered a nominal economic disadvantage from the marriage which will be compensated by her receiving the equivalent of 16 years of support.

[292] Since there should be no compensatory support awarded in this case, spousal support until termination is reasonably calculated based on Robert’s 2018 income.

[293] In Moge v. Moge, 1992 SCC 25, [1992] S.C.J. 107 (S.C.C.) the court held that spousal support should continue until the dependant spouse overcomes the career dislocation arising out of the relationship. Galina has suffered no such dislocation. If she spent as much time on her career as she did disparaging Robert and litigating against him, she would be even farther ahead in her career.

[294] If I am wrong and Galina is entitled to some form of lump sum additional support based on economic disadvantage, such amounts can be deducted from the large costs award which will likely be owing to Robert at the conclusion of this case.

What is the Support Owed and Paid in 2015?

[295] There is no dispute that during 2015 Robert was paying support of $4,000 on consent. This was uncharacterized support meaning that Robert had no ability to deduct any portion of it as spousal support for tax purposes.

[296] In 2015, both children resided with Galina full time and R.K. was still in high school. As indicated above, spousal support should be paid in the mid-range during this time.

[297] Based on the DivorceMate calculation attached as Appendix “A” to this judgment, child support would be payable in the amount of $2,799 and spousal support in the amount of $2,464 at the mid-range.

[298] However, Robert paid uncharacterized support of $4,000 per month throughout 2015. Given that his child support obligation would have been $2,799 per month, the balance of $1201 ($4,000 - $2799) can be considered net spousal support. The net spousal support owing to Galina as per Appendix A (mid-range) would be $1,632 per month. As such, Robert should have paid an additional $431 per month ($1632 - $1201) in 2015 or $5,172 (net).

What is the Support Owed and Paid in 2016?

[299] This period should be broken into two parts; the period from January to August when both children resided with Galina and spousal support is payable in the mid range, and the period of September to December when R.K. was at Queen’s and spousal support is payable in the low range.

[300] Galina argues that child support should continue to be paid for R.K. in the full amount. She provided a copy of R.K.’s driver’s license, showing Galina’s home address. I do not accept that this is proof that R.K. is residing with Galina at all times when she is not in school.

[301] The evidence about where R.K. lives when she is not in school is contradictory. Robert says she either lives with him or with her boyfriend when she is not in school. Galina says R.K. always lives with her when she is not in school. R.K. can only live in one place when she is not in school. The court is left with some doubt as to exactly where that is. Given the concerns about Galina’s credibility, I am not able to accept her evidence on this point.

[302] Therefore, no Table child support will be paid by Robert for R.K. during the school year. Without further reliable evidence of exactly where R.K. is living when not in school, no support shall be payable for her during those times either. She seems to have been well cared for during the summers since university began and I am sure that will continue.

[303] Robert paid support of $4,000 per month (net) for January to July 2016. As of August 1, 2016 Robert began to pay child support of $4,577 per month and spousal support of $456 per month based on the February 22, 2017 order.

[304] Based on the calculation in Appendix “B” to this judgment, child support of $2,464 and spousal support of $1,715 (mid-range) is payable from January to August 2016. Robert paid $4,000 per month in uncharacterized support between January and July 2016. If his child support obligation of $2,464 is subtracted from the $4,000, Robert was paying Galina a net amount of $1536 in spousal support. According to Appendix “B”, Galina should have been receiving the equivalent of $1,175 in net spousal support. Robert therefore overpaid spousal support by $361 per month between January and July 2016 and is owed a credit of $2,527.

[305] In August 2016 Robert began paying child support of $4,577 per month and spousal support of $456 per month. Based on the amounts in Appendix “B” Robert overpaid child support by $2,113 in August and he underpaid spousal support by $719 (net). Since it does not appear that Galina included spousal support in her 2016 income, net numbers for spousal support are used. The credit owed to Robert for August 2016 would be $1,394 ($2,113 - $719).

[306] Beginning in September 2016, child support should be adjusted given that R.K. was no longer living at home and Robert was contributing to her university expenses. The child support credit to Robert for this period would therefore be $3,011 per month ($4,577 - $1,566) x 4 months or $12,044.

[307] Galina’s T1 for 2016 shows that she did not include spousal support in her income. She therefore received the $456 per month as a net amount of spousal support. She should have received a net benefit of $1,066 per month at the low range (see Appendix “C”). Robert therefore owes Galina an additional $610 per month for this period or $2,440. The net credit owed to Robert for the period of September to December 2016 is therefore $9,604. The total credit owed to Robert from Galina for 2016 is $13, 525 ($2,527 + $1,394 + $9,604).

What is the Support Owed and Paid in 2017?

[308] Robert claims that R.K. lived with him during the summer of 2017 and that he should be credited with that support. In the summer of 2018 Robert claims that R.K. lived with her boyfriend. Galina denies this and insists that R.K. lived with her during the summer of 2018. It is difficult to understand how this would have worked given that Galina was residing in a very small apartment with M.K. and a dog.

[309] However, in the circumstances, and without any evidence from R.K., I find it reasonable to assume that R.K. lived with both parties at various times during the summer of 2017 and 2018, and therefore no support is payable for her in either summer.

[310] Based on the calculation in Appendix “D” to this judgment, Robert should pay child support of $1,649 and spousal support (low range) of $1,906 per month for 2017. He should be credited with the support ordered as per the February 22, 2017 judgment.

[311] This means that the child support credit would be $2,928 per month ($4,577 - $1,649) for a total credit in 2017 of $35,136. Galina included her spousal support payments in her 2017 income ($456 x 12 or $5,472). At $456 per month, the net benefit to Galina would have been $308 (See Appendix “E”). Galina should have received a net benefit of $1302 per month. Robert therefore owes the difference of $994 x 12 months or $11,928. Robert’s total credit for 2017 is therefore $23,208 ($35,136 - $11, 928).

What is the Support Owed and Paid in 2018?

[312] Based on the calculation in Appendix “F” to this judgment, Robert should pay child support of $1,548 per month and spousal support (low range) of $1,470 per month for 2018. If the amounts set out in Ms. Zigelstein’s chart are different from Robert’s T4A income a further adjustment can be made.

[313] Robert should be credited with the support ordered as per the February 22, 2017 judgment. The child support credit would therefore be $3,029 per month ($4,577 - $1,548) or $36, 348 for 2018.

[314] At $456 per month (and assuming that Galina again includes spousal support in her 2018 income) the net benefit to Galina would be $308 per month (see Appendix “G”). Robert should have paid spousal support resulting in a net benefit to Galina of $1,013 per month. The difference is $705. The total owed for 2018 would be $8,460 ($705 x12) owing to Galina. Therefore, the total net credit owing to Robert for 2018 would be $27, 888 ($36,348 - $8,460).

Ongoing support for 2019

[315] As of January 1, 2019 Robert should pay child support of $1,548 per month and spousal support of $1,470 per month for a total of $3,018. Robert should receive a credit for amounts paid to date. This can be adjusted by the Family Responsibility Office.

Other Credits Claimed by Robert

[316] Much time was spent at trial giving evidence about amounts paid to Galina by Robert for which he was seeking a credit. Those can be broken down as follows:

a. The credit owing from the judgment of Croll, J. in 2018. b. The rental arrears payment made by Robert on Galina’s behalf in 2018. c. The Rogers payment made by Robert on Galina’s behalf in 2018.

[317] Galina does not dispute that Robert paid her rental arrears of $5,000 in 2018. She was adamant, however, that this was a loan from Robert which she would repay. She had no plan as to how she would repay given her financial history and the evidence of her dismal money mismanagement. To date, she has made no payments on the alleged loan.

[318] Robert’s position was that Galina could not and would not repay him. The only way he could obtain any repayment was through a support credit. This is what he sought at trial.

[319] Robert never intended to gift Galina with this money. He paid it because did not want his son displaced when his mother did not pay her rent. Robert’s proposed solution to have this designated as a support credit makes sense given the history of this matter.

[320] The judgment of Croll, J. dated October 26, 2017 allowed Robert a credit of $37,000 for monies advanced to Galina on account of support. While Galina agreed that she received this money, she argued that it related to the sale of proceeds of a property on Wheelright Drive in Richmond Hill. Croll, J. found that property issues had been settled in 2014 and that Galina was not entitled to any sale proceeds. Further, the cheques paid to Galina representing the $37,000 all contained notations that they were “on account of support.”

[321] As such, Croll, J. deducted support owing from March 1 – August 1, 2017 ($5,033 x 7 months or $35, 231 from the $37,000 which gave Robert a credit towards support of $1,769. However, a careful reading of the endorsement at the bottom of page 4 reveals that the month of June 2017 was counted twice. Croll, J. gives credit for the period of March – June 2017 inclusive (four months) and then June – August 2017 (3 months) for a total of seven months. The credit should have been for six months (March – August 2017) being $30,198. The actual support credit owed to Robert was $6,802 and not $1,769 as set out in the endorsement.

[322] The endorsement indicates that the credit should be given towards future support and subject to readjustment by the trial judge. As the trial judge, I find that the proper credit should be $6,802 for the purposes of this judgment.

[323] Galina does not dispute that in 2018 Robert put her Rogers’ bill into good standing. The default meant that neither she nor M.K. had access to their cell phone or internet. Again, Galina appeared to view this a simply a gift on Robert’s fault given that the default affected M.K. and his ability to complete school assignments.

[324] Robert is asking that this amount ($1,400) be credited towards future support for the same reasons that the rental arrears payment should be credited towards future support.

Total Support Credits Owed to Robert

[325] Galina owes Robert the following support credits:

a. 2016 overpayment of $13,525 minus credit owed to Galina in 2015 of $5,172 for a net payment owing of $8,353. b. 2017 overpayment of $23,208. c. 2018 overpayment of $27,888. d. Support credit as per findings re endorsement of Croll, J. - $6,802 e. Rental arrears and Rogers bill - $6,400.

[326] Total support credit owed to Robert - $72,651.

Section 7 expenses

[327] There has never been a reconciliation of section 7 expenses in this case. The reasons for this are many. First, there has never been an agreement on Robert’s income for support purposes and therefore no final decision has ever been made about the parties’ proportionate share of those expenses. Second, there is a dispute as to what expenses qualify as both parties claim the other has unilaterally incurred section 7 expenses without the consent of the other.

[328] Finally, the parties have been pre-occupied with access and support issues to the point where section 7 expenses have been set aside in favor of more pressing matters. Until trial, there had never been an organized presentation of those expenses.

[329] While the February 22, 2017 order does require the parties to share s. 7 expenses proportionately, no payments ever flowed between the parties. In any event, neither party agreed with the income imputed to them in that decision and they both attempted to change that temporary order on several occasions.

[330] Given my findings with respect to support commencing in 2015, it will be straightforward to determine the parties’ proportionate share of expenses.

[331] The main challenge will be to determine which types of expenses should qualify under section 7 of the Child Support Guidelines.

[332] The parties have each filed briefs containing their receipts for s.7 expenses. As I repeated several times during the trial, given the animosity between the parties and their disagreements as to which parents had paid for what, I was not willing to include any s.7 expense as part of my judgment unless it was properly documented with receipts and proof of payment. Where I have accepted an expense in the breakdown below, it can be assumed that I was satisfied that an appropriate receipt was provided for that expense. If it is not included, the parties may assume that I did not have sufficient proof of payment.

[333] Section 7 of the Child Support Guidelines sets out the definition of “special or extraordinary” expenses and provides a non-exhaustive list of what is included in those expenses. That list includes daycare (where a parent is employed or ill), medical and dental insurance premiums related to a child, health related expenses not covered by a medical plan, expenses for education and post-secondary education, and, extraordinary expenses extracurricular activities.

[334] These expenses may be included as s.7 expenses if such expenses are necessary with respect to the child’s best interests and reasonable, given the means of the spouses and child and the spending pattern of the spouses during the marriage.

[335] Extraordinary expenses may or may not be included based on a number of factors listed in s.7(1.1) including the spouse’s income, the nature of the activity, the overall cost of activities, the child’s special needs or talents, and any other similar factor.

[336] Galina provided various statements from Queen’s University for R.K. Only one amount was permitted as a section s.7 expense in her favour as none of the other amounts could be traced to confirmed payments made by Galina. Based on the statement provided for the 2018/2019 academic year dated March 13, 2019, R.K.’s tuition was paid for by way of an OSAP grant and a Queen’s scholarship. For the reasons set out below, Robert will continue to pay for R.K.’s incidental expenses at university.

S. 7 Expenses for 2015

[337] Proportional sharing of s.7 expenses based on Appendix “A” would be 66% to Robert and 34% to Galina.

[338] I am satisfied that the receipts provided by Robert for Rachel’s dental bills, her tutoring, her Drive Test and Max’s camp would be reasonable and necessary. In terms of camp, M.K. traditionally attended camp during the marriage and this was agreed upon by the parties. I do not include the requested expenses for clothing for either of the children or the cost for R.K.’s sweet 16 birthday party. The purchase of clothing for the children by Robert should be considered part of the cost of caring for the children while they are with him. The cost of the sweet 16 birthday party was excessive in my view and should not be shared. In any event, there was no agreement by the parties to share this expense.

[339] As such, the accepted s.7 expenses for Robert in 2015 would be dental of $2,651, tutoring of $150, camp for M.K. $5,175.40 and the Drive Test at $146 for a total of $8,122. Galina’s share of this amount for 2015 would be $2,761.

[340] Galina claims dental expenses for R.K. in 2015 in the amount of $3,651. She also claims payment for M.K.’s basketball (need receipt for this). Robert’s share of the dental expense for 2015 would be $2,409. Galina therefore owes Robert $352 for 2015 s.7 expenses.

S.7 Expenses for 2016

[341] Based on Appendices B and C for 2016, Robert’s share of s.7 expenses for 2016 shall be set at 66% and Galina’s at 34%.

[342] Robert claims orthodontic expenses for Rachel of $2,500, dental expenses for M.K. of $1,250, Queen’s University payments for R.K. of $3,294.64, York Mills Hockey Club for $550 and Camp Timberlane for M.K. for $4,988.40. The total s.7 expenses claimed by Robert for 2016 is $12,583.04.

[343] I see no reason not to accept these expenses as reasonable and necessary. Galina’s share of these expenses is therefore $4,278.23

[344] Galina claims dental expenses of $435 for M.K. in 2016. Robert’s share of that expense would be $282.75.

[345] Galina therefore owes Robert $3,995.48 ($4,278.23 - $282.75) for 2016 s.7 expenses.

S.7 expenses for 2017

[346] Based on Appendix D, Robert’s share of s.7 expenses in 2017 would be 66% and Galina’s 34%.

[347] Robert claims s.7 expense payments of $1,570 for R.K.’s orthodontia, rental payments for R.K. for university totaling $17,082.82, cash payments to R.K. to assist with daily living totaling $1,050, basketball fees for M.K. totaling $2,695, camp for M.K. of $5,593.50 and Hockey Club fees for M.K. totaling $550.

[348] These expenses are well documented. I do not allow the clothing (such as coats and boots) for M.K. for the reasons already set out above. Therefore, the total allowable claim by Robert for 2017 is $28,541.32. Galina’s share of this amount is $9,704.04.

[349] Galina claims dental expenses for M.K. in 2017 of $639 and tuition fees for R.K. of $16,059. Robert’s share of this amount would be $11,020.68. There was significant evidence concerning Galina’s claim for the 2017 tuition payment. Robert was not satisfied that Galina had made this payment. Galina produced bank statements verifying this amount was paid to Queen’s. The fact that she had to borrow this money is not relevant. She must still, presumably, pay it back.

[350] Robert therefore owes Galina $1,316.64 ($11,020.68 - $9,704.04) for s.7 expenses in 2017.

S. 7 Expenses in 2018

[351] Based on Appendix F, Robert should pay 66% of the 2018 s.7 expenses and Galina 34%. Robert claims $1,655.21 for R.K.’s summer courses, rent payments for R.K. of $8,499, dental for M.K. of $677.85, cash payments for daily living for R.K. of $5,790, basketball fees for M.K. of $1,565 and costs related to M.K.’s Bar Mitzvah and other miscellaneous expenses for M.K. totaling $2,190.82.

[352] I allow all Robert’s claims in relation to R.K. At my request, Robert removed all amounts paid to R.K. as gifts. The cash amounts transferred to R.K. were for utilities and food, necessaries for her life at university.

[353] As for M.K. I allow all of the expenses except that only the expenses directly related to the Bar Mitzvah are allowed. The parties jointly hosted this event and should share in the direct cost proportionately. Therefore the total allowed for Robert in 2018 would be $19, 636.43. Galina’s share of these expenses would be $6,676.38.

[354] Galina claims dental costs for M.K. of $1,210.35. Robert’s share would be $798.83. Galina would therefore owe Robert $5,877.55 for 2018 s.7 expenses.

[355] Galina was very upset at trial about what she perceived to be Robert’s lack of contribution to R.K.’s education. It appears that for the last two academic years R.K. has been relying on OSAP loans and grants. Clearly Robert, pays for many of her other daily living expenses. It is unclear what contribution Galina has made other than the tuition payment in 2017.

[356] The parties should continue to share s.7 expenses as they arise. A sharing at the rate of 66% by Robert and 34% by Galina is reasonable in the circumstances.

[357] Given all of the above, Galina would owe Robert $8,908.39 for special expenses for the period of January 1, 2015 to December 31, 2018.

How to Deal with the Credits Owed to Robert by Galina – Fixed Term Spousal Support

[358] In terms of the law, this marriage does not reach the 20 year mark or the rule of 65 which would entitle Galina to indefinite support.

[359] In terms of the relevant factors in the Divorce Act, the court must consider s.15.2(4) with respect to;

a. The length of time the spouses cohabited; b. The functions performed by each spouse during cohabitation; and c. Any order, agreement or arrangement relating to support of either spouse.

[360] Turning to the four objectives of a spousal support order in s.15.2(6) of the Divorce Act, the court must also consider the following:

a. The economic advantages or disadvantages arising from the marriage or its breakdown; b. Apportionment between the spouses of the financial consequences arising from the care of any child of the marriage, beyond support obligations; c. Any economic hardship arising from the breakdown of the marriage; d. Promotion of the self-sufficiency of each spouse within a reasonable time.

[361] In my view, this is a case which would lend itself to a fixed term of support in consideration of the factors set out in the Divorce Act and the credits owed to Robert.

[362] Notwithstanding Galina’s arguments I do not view this as a case for compensatory support. Galina came into the marriage with skills as a real estate agent. Within a short period of time post separation she was again working as a real estate agent and earning a good income. She did not appear to have suffered an economic disadvantage from the marriage. If I am wrong, and a compensatory award is merited, it can be offset by any costs award which will be owing to Robert.

[363] Robert is owed $72,651 in support credits and $8,908.39 in credits for s.7 expenses for a total of $81,559.39.

[364] Based on spousal support being paid for a total of 16 years at the low end, the after tax benefit to Galina would be $186,882 based on the net present value of a lump sum payment as set out in Appendix F.

[365] If Robert continues to pay spousal support until July 2020, Galina will have received spousal support for nine years. Another seven years of spousal support would be a lump sum of $81,760 ($186, 886 / 16 x 7). This approximates the credit owed to Robert.

[366] It is not unreasonable to equate the credit in this case to any remaining net spousal support obligation owed by Robert for the following reasons:

a. It will not affect Robert’s ongoing child support obligation and will in fact free up funds to assist R.K. with her education. Robert will continue to have substantial financial obligations in that regard for the next two years. b. It presumes a 16 year spousal support obligation which is at the highest end of the Spousal Support Advisory Guidelines given the length of the marriage. c. While the support is calculated at the low end of the range, R.K. has not resided with Galina for over two years and is now 20 years old. M.K. will be entering high school in September 2019. d. Galina is capable of earning a good income as a real estate agent when she chooses to do so. e. Galina would never be able to repay Robert the credit he is owed. She has not been able to repay any amounts to date. She is also a dismal money manager. Robert has significantly overpaid his support obligations. It is unfair to him to simply erase this large credit. f. Spousal support has been an area of serious contention between these parties. g. As per the terms of this judgment, Robert will be paying for the majority of M.K.’s s.7 expenses without contribution from Galina. h. As per the terms of this judgment, Robert will continue to pay for R.K.’s living expenses at university without contribution from Galina. The amounts paid by Robert for these expenses were $18,000 in 2017 and $16,000 in 2018. i. Galina has had virtually no success in this trial. It is likely she will also owe costs to Robert and it also likely she will be unable to pay those costs.

[367] In this case, the parties cohabited as spouses from November 1995 to July 2011 – about 15.5 years. While it is true that Galina performed the majority of caregiving for the children, she had help. First, she had a full time nanny throughout the marriage. Second, Robert had a flexible schedule, often worked from home and helped when he could. Most importantly, the functions performed by Galina during the marriage did not preclude her from returning to her former career very shortly after separation.

[368] I accept Robert’s evidence that the parties agreed that Galina would stay at home with R.K. until she started school. She would then return to work. Galina did not return to work. After M.K. was born Robert again encouraged Galina to return to work. She refused. Robert complained that Galina spent money indiscriminately and he asked to go back to work to help contribute to their expenses. She refused. She told Robert to work harder.

[369] Galina will have received spousal support for 9 years before it terminates. The termination, however, takes into account support paid to July 2020 and a credit which would be the equivalent of 16 years of support. This is the longest duration of support as per the calculation in Appendix F. While the Spousal Support Advisory Guidelines are not mandatory with respect to duration of support, they are certainly instructive.

[370] The parties came to an agreement with respect to support up to the end of 2014 and Robert paid court ordered support thereafter. While Galina complained bitterly throughout the trial that Robert had underpaid support throughout, that contention was not borne out in this judgment. In fact, Galina has enjoyed the benefit of a significant overpayment of support. The result is that Robert is in debt. He owes CRA and has outstanding loans and credit card bills. Galina is also in debt but that is, in part, her own doing with respect to her inability to budget or manage money.

[371] Galina was 45 years old at the time of separation and is currently 53 years old. At trial she presented as healthy and fit. She certainly did not lack energy. There was no evidence that Galina suffered from any type of physical health problems. The only party that has suffered from health problems was Robert. Hospitalizations (even during the trial) due to heart related issues have occurred. Robert and his mother testified as to the debilitating effect this litigation and the problems with trying to see his children has had on Robert’s health.

[372] Galina will have had nine years to become self-sufficient by the time support ends in July 2020. I do not see that that length of time is unreasonable in these circumstances especially considering that she has had the benefit of an overpayment of support for many years and that Robert will be paying a large portion of the s.7 expenses going forward.

[373] In terms of the law on time limited support, the Ontario Court of Appeal’s decision in Fisher v. Fisher (2008 ONCA 11, 2008 CarswellOnt 43) provides guidance. In that case the parties were married for 19 years. The Court of Appeal upheld the trial judge’s decision to order time limited non-compensatory support.

[374] While it is true that not all of the facts in Fisher align with this case (there were no children of the marriage), the wife in that case was not able to earn more than $30,000 per year. Galina is capable of earning far more than that.

[375] The court in Fisher grappled with s. 15.2(6) (c) of the Divorce Act and discussed whether the wife in that case had suffered any economic hardship from the marriage breakdown. The court determined that the wife did not suffer from literal hardship as her income did provide her with enough to meet basic needs. That, however, is different from economic hardship by way of a reduction in the wife’s standard of living.

[376] In assessing economic hardship and its tie to the concept of self-sufficiency, the court in Fisher considered the parties’ present and potential incomes, their standard of living during the marriage, the efficacy of any suggested steps to increase a party’s means, the impact of any equalization, the duration of their cohabitation and other any other relevant factors.

[377] In this case, both parties have suffered from a reduction in their standard of living. They have depleted the equity in their home, their savings and their RRSPs to fund this litigation.

[378] Equalization has had little impact in this case because the parties spent the capital realized from their home on legal fees. A review of Galina’s spending habits in 2013 (from the credit card statements presented) shows that she was not of a mind to curb her spending in contemplation of an unknown financial future.

[379] The duration of cohabitation (rounded to 16 years) has been factored into determining the net present value of the spousal support award which includes payments to a future date and a lump sum by way of an offset of the overpayment by Robert.

[380] In terms of potential incomes, as can be seen by the calculation of support for the 2015-2108 period, Robert’s income has neither drastically increased nor decreased. He has never resisted the payment of support as Galina alleges. He has resisted paying support on an income he does not earn or for children who no longer reside with Galina.

[381] Galina’s income since separation has been quite variable. Galina is proud of her work as a real estate agent. She certainly has potential. Justice Harvison Young (as she then was) imputed income of $200,000 per year to her on an interim motion in 2016. It cannot be said that the marriage has compromised her career aspirations. Finally, the fact that Galina chooses not to live up to her employment potential cannot be visited solely on Robert.

[382] As per Fisher at para 60, I find that Galina did not suffer any “established economic disadvantage arising from the marriage either by the assumption of child care responsibilities or in any other way that compromised her career or educational aspirations.”

[383] In Fisher, after considering the Divorce Act factors, the court determined that the wife required seven years of support from the date of separation after a 19 year marriage. Galina will receive the equivalent of 16 years of support. In this court’s view, that more than offsets any economic disadvantage arising from Galina’s post separation child care responsibilities.

[384] Subsequent to Fisher, courts have not been hesitant to make time limited spousal support orders even in medium length marriages.

[385] In Holmes v. Holmes, 2009 CarswellOnt 87 (OSCJ), the parties had been married for 16 years and had two children, one of whom was in university and the other in high school. The husband was ordered to pay spousal support at a trial which took place three years after separation. Three years after that judgment was released both parties brought Motions to Change. The wife sought increased spousal support. She asked the court to impute income to the husband based on what she testified was his ability to manipulate his own work hours. The husband sought to terminate support.

[386] The wife in Holmes was self-employed and income of $20,000 per year was imputed to her. The husband’s income was determined to be $79,790. Spousal support was ordered to continue until December 31, 2014 at which point it would terminate. Support was therefore paid for a total of 12 years from the date of separation. It should be noted that in that case, the husband had not overpaid support and no credits were owed to him for child support, spousal support or s.7 expenses.

[387] In concluding that time limited support was reasonable in the circumstances, the court took into account the factors in the Divorce Act and Fisher, the age of the wife (41), the fact that the wife had no plans to retrain, the reasonableness of having 12 years to become self-sufficient and the fact that the oldest child was at university.

[388] The facts in Holmes are similar to this case in that the wife had the full time care of both children for approximately five years after separation, she was employed but earned a variable income, she was disadvantaged by the marriage breakdown and she had no health or other impediments that would prevent her from earning a greater income and becoming self-sufficient.

[389] For all of the reasons stated above and in consideration of the relevant factors in the Divorce Act, the principles in Fisher, the large credit owed to Robert and the guidance provided by the Spousal Support Advisory Guidelines, I find that a termination of spousal support in July 2020 is reasonable.

Division of Personal Property

[390] The parties agreed to settle all equalization in December 2014. That agreement specifically excluded any division of or equalization payment for household contents. As such, the issue of household contents remained a live issue for trial.

[391] The parties gave contradictory evidence about what happened to the contents of the matrimonial home. Robert told the court that Galina left the majority of those contents at her rental property on Elmsthorpe when she was forced to vacate due to rental arrears.

[392] Galina would not consent to Robert attending at the Elmsthorpe property to pick up the contents or put them in storage. As such, Robert received virtually nothing by way of contents. While Robert recognizes that the items were used contents, he values them at $20,000 and seeks an equalization payment of $10,000 from Galina.

[393] Galina testified that Robert was given many opportunities to come to the matrimonial home and take what he wanted. In fact, he came to the home on several occasions and took items without Galina’s consent. Her evidence was that the furniture in the home was old and of little value. She consented to returning to Robert some prints from the home that she had stored in the basement of the basement of the building where her real estate office is located. She did not agree to pay him any equalization payment on the grounds that the contents were worthless, and in any event she could not afford to pay Robert anything when he owed her significant amounts of support.

[394] When Robert first moved out of the matrimonial home he rented a furnished condo. When he rented his current home, he testified that he spent about $15,000 on furniture and miscellaneous items that he needed because he had not received any share of the household contents.

[395] Robert did not provide a list of contents or any valuation of them. He provided some photographs of the interior of the matrimonial from the sale listing.

[396] It is impossible for this court to “guess” at what was actually in the matrimonial home or what it was worth. I accept Robert’s testimony that he was given no opportunity to retrieve his rightful share of contents, however, without better evidence of their worth, the court cannot order an equalization payment.

[397] In the circumstances I find that there should be no further equalization payment to Robert, all of the other equalization issues having been settled at the end of 2014. Robert should receive the prints which Galina agreed he could have during the course of the trial.

Robert’s Claim for Compensation for Galina’s Alleged Breach of the 2014 Consent Order

[398] Robert sought to retroactively amend his Answer at trial to seek a contempt finding against Galina in relation to her breach of the consent access order. I was not prepared to grant this relief given that it was not raised at the Trial Management Conference and Galina was not given sufficient notice or time to respond to a contempt proceeding.

[399] Robert subsequently changed his request for relief in this regard and sought a finding of “non-compliance” in the context of Rule 1(8).

[400] There is no doubt that the issue of Galina’s alleged non-compliance with the consent parenting order in 2014 was raised many times by Robert during the 5.5 years this matter was litigated both as relief at various motions and as a basis for costs. It was also the source of substantial evidence at trial. Robert never had any success in this regard.

[401] Galina was cavalier about the issue. She told the court quite openly during the trial on more than one occasion that she left access up to the children, would not force them to go, and dictated who could be present at the access visit. She was vehement that access visits were meant for Robert and the children and others should not be present.

[402] As discussed earlier in this judgment, part of the reason why M.K. appears to be hesitant to see his father is that his mother openly demonstrates a contemptuous and derisive attitude towards Robert. If Galina’s conduct during this trial is any measure of what goes on in her household, it is shocking. She did not hesitate to call Robert a liar, was adamant that he had committed fraud along with those he worked with, insisted that Robert (and the persons to whom he reported) forged and manipulated documents in order to reduce his income for support purposes. She called him a deadbeat dad, in voice recordings she was heard to wish him dead and wish that he got cancer, she insisted he did not pay support (and reported this publicly on social media platforms) and that any parenting issues which had arisen since separation were entirely his fault. None of these allegations were borne out at trial. Galina’s attitude towards Robert combined with her view that it was up to the children whether they saw their father for access visits had the anticipated result. They did not want to go for access visits.

[403] There is no doubt that Galina put her own gloss on the requirements of the 2014 consent access order. Her interpretation of it was simply wrong. However, the subject of “compensation” for such non-compliance is better dealt with by way of a costs order than attempting to assess some form of damages for failing to encourage access visits.

[404] As such, the issue of Galina’s non-compliance with the 2014 consent order will be considered with respect to the scale and quantum of costs in this matter. I invite Robert to include this as part of his costs submissions.

Restraining Order

[405] Robert seeks a restraining order against Galina. It should be noted that while such a claim is not contained in his Answer, it is understandable based on the evidence heard at trial, why Robert would seek such relief.

[406] While I am not prepared to grant a formal restraining order in the circumstances, I have made certain orders intended to ensure that Galina cannot interfere or attend at Robert’s workplace or home except in certain defined circumstances. This should hopefully address Robert’s concerns.

Final Orders

[407] The child, M.K. born March 16, 2005 shall reside primarily with the applicant.

[408] The respondent shall have parenting time with M.K. at the following times:

a. Every alternate weekend commencing Friday March 29, 2019 after school to Monday morning school drop off. b. Each March Break for a seven day period. c. Each Thanksgiving and Easter long weekend even if those weekends do not fall on the respondent’s regular access weekend. For clarity, this means that M.K. shall reside with the respondent from Friday after school to Tuesday morning drop off each Thanksgiving, and Easter weekend. Where a long weekend includes a Friday holiday (such as Good Friday) the weekend will commence on Thursday after school. If other long weekends during the school year fall on the respondent’s weekend (such as Family Day or Victoria Day weekend), the respondent shall also be entitled to those access weekends from Friday after school until Tuesday school drop off. d. The second week of each Christmas vacation for a seven day period. e. Alternate weeks during the school summer vacation. For clarity, the school summer vacation will be deemed to commence the Monday after the last day of school. Changeover for the summer schedule shall be Monday evenings at 8:00 p.m. If the respondent has the weekend before the first day of summer vacation, his first summer week shall commence the following Monday. f. Yom Kippur in each year.

[409] Day to day decisions will be the responsibility of the parent in whose care M.K. is residing at the time. The parties should make every effort to achieve consistency in M.K.’s daily routines.

[410] The applicant may not dictate who is present during the respondent’s access. For clarity, this means that the respondent is free to have his parents present during any access visit, or any other third party he deems appropriate. Any cancellation or denial of access by the applicant because she does not approve of third parties who may be present during the respondent’s access is prohibited and shall be considered a breach of this order.

[411] The respondent is entitled to take M.K. out of Canada for vacations during any access period. The consent of the applicant is NEVER required so long as the vacation occurs during a regular access period.

[412] Where the respondent takes M.K. out of the country for a vacation, he must provide an itinerary to the applicant when known, and at least seven days prior to departure. An itinerary is not required for any travel within Canada.

[413] The respondent shall be entitled to retain and renew M.K.’s passport. Any passport renewal for M.K. does not require the applicant’s consent or signature. The applicant shall provide M.K.’s passport to the respondent or his designate within 72 hours of the release of this judgment.

[414] Should the applicant wish to take M.K. away on vacation outside of Canada, she must provide the respondent with an itinerary when available and at least 7 days in advance. The applicant does not require the consent of the respondent to travel with M.K. on vacation so long as the vacation takes place at times other than the respondent’s regular access. The respondent shall deliver M.K.’s passport to the applicant three days prior to her vacation with M.K. and the applicant shall return it to the respondent three days following the vacation.

[415] The respondent shall have sole responsibility for making decisions related to M.K.’s activities. The respondent shall pay 100% of the cost of any activity in which he enrols M.K. Upon enrolment, the respondent shall immediately provide a schedule for the activity to the applicant.

[416] If the applicant wishes to enroll M.K. in an activity, the applicant shall pay 100% of the cost of that activity.

[417] The parties shall take M.K. to activities that fall within their parenting time. The respondent may assist in taking M.K. to activities that fall within the applicant’s parenting time if the applicant is without transportation.

[418] As a result of past conflicts, the parties are not permitted to attend any of M.K.’s extra-curricular activities that do not fall within their scheduled parenting time.

[419] The respondent shall have sole responsibility for making decisions related to M.K.’s education. This does not include the decision with respect to where M.K. will go for high school as that decision has already been made. The respondent will consult with the applicant and M.K. about education related decisions, but the respondent’s decision will be final if the parties cannot agree.

[420] The respondent to be listed as the primary parent contact on M.K.’s school registration forms and the applicant to be listed as the secondary parent contact. The current contact information is to be changed forthwith.

[421] Neither parent shall make derogatory remarks about the other parent to the children nor will either party discuss the litigation herein with the children.

[422] Discussions between the parties at transition times or other special events where the children are present or nearby shall be limited to brief and cordial exchanges.

[423] Where email or text communication is necessary to arrange a transition or discuss an upcoming activity or event, that communication will also be brief and cordial.

[424] Neither parent is to engage the children in discussions about the other parent’s private life. In particular, the parents are not to question the children about any of the other party’s dating relationships or girlfriends/boyfriends. It is expected that the parties will use both discretion and wisdom with respect to introducing the children to any new significant person in their life.

[425] The parties shall discourage the children, and in particular M.K., from asking the other party for “support” money or from involving them in any matter relating to either child or spousal support.

[426] The applicant shall not post any derogatory photos, comments, videos, audio, images, writings, postings or messages related to the respondent on any social media platform including but not limited to Instagram, Twitter or Facebook. If the applicant does so, it shall be considered a breach of this order and the applicant may be subject to costs and a contempt proceeding.

[427] The applicant is not to attend the respondent’s place of business or communicate with anyone at the respondent’s place of business or anyone employed in a management or ownership role at ReMax unless it is necessary for her personal business as a real estate agent. This includes faxing, telephoning, emailing or texting anyone at the respondent’s place of business for any reason other than communication related to the applicant’s involvement in a real estate transaction.

[428] The applicant is not to attend at the respondent’s home except for the purpose of dropping off or picking up the children for access or for child related activities.

[429] The respondent shall pay child support for the child, M.K. born March 16, 2005 in the amount of $1,548 commencing January 1, 2019. The Family Responsibility Office to adjust for any overpayment or underpayment of child support between the date of this judgment and January 1, 2019.

[430] The respondent shall pay spousal support for the applicant in the amount of $1,470 per month commencing January 1, 2019. Spousal support shall terminate forever as of the last payment on July 1, 2020.

[431] The termination of spousal support is predicated on the respondent having paid 9 years of spousal support to July 1, 2020 (July 2011 to July 2020) plus receiving a net credit for an overpayment of child support, spousal support and s.7 expenses between January 1, 2015 and December 31, 2018 of $81,559.89.

[432] There are no arrears of child support, spousal support or s.7 expenses as of December 31, 2018.

[433] The respondent shall continue to pay for R.K.’s rent and incidentals at university, without contribution from the applicant.

[434] The parties shall exchange income tax returns in each year commencing June 30, 3019. Child support shall be adjusted in accordance with any decrease/increase in the parties’ incomes. For support purposes, the parties’ incomes shall be determined based on gross earnings minus expenses of 40% in each year.

[435] Spousal support shall be fixed in the amount of $1,470 per month until the termination date of July 1, 2020.

[436] If not already done, the applicant will deliver to the respondent (or his designate) the Marilyn Monroe print and the Ali/Presley print forthwith.

[437] Neither party shall pay to the other any equalization payment.

[438] The respondent shall proceed to finalize the divorce at his cost.

[439] Support Deduction Order to Issue.

Costs

[440] Robert has had significant success in this matter. The only area in which he was not successful related to his claim for equalization of the contents of the home. That was a minor issue compared with many of the others.

[441] As there will likely be no agreement concerning the payment of costs, I invite the parties to provide written submissions of no more than five pages each (double spaced) exclusive of any Bill of Costs or Offers to Settle. The parties are free to include accounts for any legal advice sought or expert advice obtained in relation to the trial.

[442] Robert shall submit his costs submissions first by April 12, 2019. Galina shall submit her responding costs submissions by 26, 2019. Robert shall provide any reply by May 3, 2019. Costs submissions shall be sent electronically and directly to my assistant Patrizia.Generali@ontario.ca. There shall be no extensions of the timelines for the submission of costs. The parties are reminded that costs submissions are restricted to the number of pages as set out above. Any reference to new evidence or other miscellaneous issues that do not relate to costs shall be disregarded by the court.

C. Gilmore, J.

Released: March 29, 2019

COURT FILE NO.: FS-13-39062 DATE: 20190329 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Galina Psavka Applicant – and – Robert Kroll Respondent

REASONS FOR JUDGMENT C. Gilmore, J. Released: March 29, 2019