Court File and Parties

Court File No.: D54339/11 Date: 2014-08-05

Ontario Court of Justice

Between:

G.T.B. Applicant

Stella Iriah Anaele, for the Applicant

- and -

Z.B.B. Respondent

William Fuhgeh, for the Respondent

Karen Lindsay-Skynner, for the Office of the Children's Lawyer, on behalf of the Children

Heard: July 30, 2014

Justice S.B. Sherr

Reasons for Decision

Part One – Introduction

[1] The respondent (the father) has brought an application seeking joint custody of the parties' two children, ages 16 and 10 (the children). He is content that the children have their primary residence with the applicant (the mother). The father asked for specified access to the children, including that the children spend the entire summer and March school break each year with him at his home in North Carolina. He also asked for access to the children in Canada and for holiday access.

[2] The mother brought her own answer/claim seeking custody of the children, child support and a restraining order against the father. She did not pursue the request for the restraining order at trial. She seeks an order that access be specified, to take place in Canada and asks for an order that the father cannot remove the children from Canada. At trial, the mother asked the court to impute income of $60,000 per annum to the father and to order him to pay her the table amount of child support, based on this income, pursuant to the Child Support Guidelines (the guidelines). The father asked the court to base child support based on an income of $14,400 per annum.

[3] The Office of the Children's Lawyer, on behalf of the children, asked the court to award custody of the children to the mother. They supported access taking place, but on a gradual basis, starting with shorter day visits, followed by overnight visits if the initial visits go well. They asked the court to order that all access take place in Canada.

[4] Pursuant to Rule 2 of the Family Law Rules (the rules) the parties agreed to a focused trial of these issues. It was agreed that only the parties would testify and they would file affidavits as their direct evidence. The parties agreed that they would each have 30 minutes to supplement their direct evidence with oral evidence, two hours to cross-examine the other party and 30 minutes each for re-examination. It was agreed that counsel for the children could question both parties for up to one hour apiece. The parties asked for and were granted short extensions on the time limits throughout the trial.

[5] By agreeing to this process, the court was able to schedule the hearing of this trial within three weeks. The court commends counsel for their ability to focus the hearing in this manner. It facilitated the parties being able to be heard in a timely and cost-effective manner. Most importantly, it facilitated a resolution of this case for the children. This approach is consistent with counsels' obligation pursuant to subrule 2 (4) of the rules to promote the primary objective of dealing with cases justly and the Supreme Court of Canada's direction in Hryniak v. Mauldin, 2014 SCC 7, to litigate cases in a responsible and proportional manner to ensure access to justice for the parties.

Part Two – Background Facts

[6] The father is 43 years old. He was born in Cameroon.

[7] The mother is 42 years old. She was also born in Cameroon.

[8] Both parents have been granted Convention Refugee Status.

[9] The parties met in Germany in 1996 and began living together. They subsequently moved to live in the Netherlands.

[10] The parties had the two children (both girls) together. Their older child, J.B., was born in Germany. Their younger child, M.B., was born in Canada.

[11] The parties married on December 20, 2002.

[12] Both parties described an unhappy marriage at trial. The parties separated on March 28, 2003 when the mother and J.B. moved to Canada. The parties have not reconciled since that time.

[13] The father moved to Austria later in 2003.

[14] The mother and the children have lived in Toronto since they moved to Canada.

[15] The father did not see the children from 2003 until the mother took the children with her to visit him in Austria in 2006. He did have telephone contact with the children during this time.

[16] The father did not see the children again until May of 2011. He had telephone contact with the children during this time.

[17] The father has infrequently seen the children since May of 2011. He saw them in December of 2011, April, June and December of 2012 and briefly in May of 2013. He has had telephone and email access with the children, except from about May of 2013 until March of 2014.

[18] The mother has been steadily employed since 2007 as a customer service representative for a major credit card company. The mother has a new partner. She testified that her partner has a close relationship with the children.

[19] The father has never lived in Canada. He moved from Austria to Raleigh, North Carolina, in November of 2010. He has remarried and has a young child with his new wife. His wife also has two children who live with them. The father is self-employed. He said that he works as an Enrolled Agent. He said that he is certified by the United States Internal Revenue Service to prepare personal and corporate tax returns and to represent persons in tax dispute hearings with the government.

[20] The father issued this application on December 19, 2012. The mother's answer/application is dated February 8, 2013. The parties arranged their first case conference on September 26, 2013. At that appearance, a referral order was made to the Office of the Children's Lawyer.

[21] The father did not complete his required intake form for the Office of the Children's Lawyer and they did not accept the initial court referral. At the next case conference on November 20, 2013, a new referral order was made. The father completed the intake form and the referral was accepted. On December 9, 2013, the Office of the Children's Lawyer appointed counsel for the children pursuant to subsection 89 (3.1) of the Courts of Justice Act.

[22] Counsel for the children advised the parties of the recommendations being made on behalf of the children (as set out in paragraph 3 above) on May 27, 2014. The mother was content with the recommendations. The father was not and accused the children's counsel of bias and unprofessionalism.

Part Three – Custody

3.1 Legal Considerations

[23] The Ontario Court of Appeal in Kaplanis v. Kaplanis, [2005] O.J. No. 275 sets out the following principles in determining whether a joint custody order is appropriate:

1. There must be evidence of historical communication between the parents and appropriate communication between them.

2. It can't be ordered in the hope that it will improve their communication.

3. Just because both parents are fit does not mean that joint custody should be ordered.

4. The fact that one parent professes an inability to communicate does not preclude an order for joint custody.

5. No matter how detailed the custody order there will always be gaps and unexpected situations, and when they arise they must be able to be addressed on an ongoing basis.

6. The younger the child, the more important communication is.

[24] Joint custody should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests. See: Graham v. Butto, 2008 ONCA 260; Roy v. Roy, [2006] O.J. No. 1872.

[25] Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required, and is obviously not achievable. See: Griffiths v. Griffiths, 2005 ONCJ 235, 2005 CarswellOnt 3209. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis. See: Warcop v. Warcop.

[26] Where a conflict between parents (such as an inability to communicate effectively) is primarily the fault of one parent, that parent should not be able to use the conflict as justification to oppose a joint or shared parenting order. To do so allows an obdurate parent to engineer a result in his or her favour. However, where the conflict is extreme and there is substantial blame to be leveled against both parents, a joint or shared custody approach is not appropriate. See: Geremia v. Harb.

[27] In recent years, there has been more willingness to grant joint custody where such an order is necessary to preserve the balance of power between the parents, especially where one parent has been primarily responsible for the conflictual relationship: See: Garrow v. Woycheshen, 2008 ONCJ 686; Hsiung v. Tsioutsioulas, 2011 ONCJ 517.

[28] Ultimately, the court must decide if a joint custody order is in the child's best interests and consider the factors set out in subsection 24 (2) of the Children's Law Reform Act in reaching this decision. This subsection reads as follows:

Best interests of child

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(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) any plans proposed 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;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

3.2 Analysis

[29] The evidence was overwhelming that it is in the children's best interests to grant sole custody of them to the mother. This issue should not have been litigated.

[30] The mother has been almost exclusively responsible for raising the children. She is the parent who has attended to their physical and emotional needs.

[31] The father has been mostly absent from the children's lives. He has had very limited face-to-face contact with them (although at times he has had frequent telephone contact). He did not see them from 2003 until they visited him in Austria in 2006. The children did not see him again until 2011. They have had only short periods of in-person contact with the father since then.

[32] The mother has done an excellent job raising the children. The evidence indicates that the children are healthy, happy, accomplished and well-functioning.

[33] Both children are excellent students and have won many certificates and awards.

[34] The mother has demonstrated the ability to make responsible decisions for the children.

[35] The evidence revealed that the historical communication between the parents is terrible. In their evidence, they focused on their historical grievances against the other. They demonstrated a complete lack of respect and mistrust of the other at trial. They would sit and sneer at the evidence and concerns of the other.

[36] The parties spent most of their testimony focused on these historical grievances and very little time on the children. Their anger at each other at trial was intense.

[37] The mother testified that the father was horribly abusive to her during their relationship. She claimed that he controlled and physically abused her. She said that he forced her into prostitution. She said that she had to support him and he rarely worked. She said that the father was an alcoholic who would frequently black out. She described the father as a dishonest schemer, always coming up with fraudulent plans. She testified that he has threatened in the past to take the children away from her. She thoroughly distrusts him and his motives.

[38] The father denied the mother's allegations. He alleged that it was the mother's choice to become a prostitute and their relationship broke up because she was having frequent affairs and spending her time gambling at casinos. He claimed that the mother promised to sponsor him to Canada and reneged on that promise once she arrived here. He testified that it is the mother who is controlling. She will only let him have contact with the children on her terms and when she doesn't get what she wants, she restricts his contact with them.

[39] The parties' mistrust of each other was exacerbated in May of 2013. The mother traveled to Cameroon to visit her sick mother. The children were left with her partner and another family member. The father found out about this and reported to the Children's Aid Society of Toronto his concern that the children were improperly supervised. The society investigated the allegation. They closed their file, finding that the children were properly supervised.

[40] Both parties presented as persons who are difficult to deal with if you don't agree with them. The father was argumentative and evasive when questioned. He had to be redirected to answer questions. The father unjustifiably concluded that counsel for the children was biased when she made recommendations he didn't like. He felt that the mother and children's counsel walking into court together at the start of the trial (when they were paged) was evidence of this bias. He misunderstood counsel's role in the case. He felt that she was holding back evidence by not providing her notes of her conversations with the children.

[41] The mother was also argumentative when questioned and had to be frequently redirected to answer questions. It became apparent that she was significantly angered when the father started his application and when he made his report to the Children's Aid Society of Toronto. Her response was to make telephone access more difficult, preventing the father from using her home land-line and insisting that he buy the children a phone.

[42] These parties would be incapable of making important decisions for the children together. The physical distance between the parties only makes effective communication more difficult.

[43] This is not a case where one person is mainly responsible for the communication problems and is using this as a basis for denying a joint custody claim. Both parties are responsible for the poor communication.

[44] The mother will be granted custody of the children.

[45] The father will be granted rights of information set out in subsection 20 (5) of the Children's Law Reform Act. This subsection reads as follows:

Access

(5) The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

Part Four – Access

4.1 Legal Considerations

[46] The test for determining access is what order is in the best interests of the child. In making this determination, I have considered the "best interest" factors set out in subsection 24 (2) of the Children's Law Reform Act (as set out in paragraph 28 above), as well as all other relevant considerations.

[47] The children should have maximum contact with both parents if it is consistent with their best interests. See: Gordon v. Goertz, [1996] 2 S.C.R. 27.

4.2 Analysis

[48] In her closing submissions, the mother indicated that she would support the father having overnight access with the children, provided that the access takes place in the Greater Toronto Area.

[49] The children's position was that the court should take a gradual approach to access, starting with shorter day visits, and then moving to overnight visits if the visits go well. Further, the position was that all visits should take place in Canada at this time.

[50] The court finds that this is a sensible position for the following reasons:

a) The children have had limited physical contact with the father.

b) The children have been placed in the middle of a very hostile dispute between the parents. They are in the very difficult position of not wanting to displease either parent. The Children's Aid Society of Toronto wrote a letter to the father on July 15, 2013 confirming that "the children are experiencing some symptoms of emotional/mental harm as a result of the conflict regarding custody and access occurring between the parents". The mother reported that the children were upset following the father's extended visit with them in June of 2012. She said that M.B.'s behaviour changed for a period of time - she was sad, withdrawn, angry and started to use bad language. She attributed M.B.'s behavioural changes to the father undermining her parenting to the child.

c) After observing the parties at trial, the court has little doubt that the parents demean each other to the children and place them in the middle of the conflict. They both showed little insight into the impact this might have on the children.

d) The mother demonstrates a high level of anxiety and mistrust of the father. This is based on her perception of her experiences with him. The children are very close with the mother and are undoubtedly affected by her perceptions. The children have been stable and are functioning well. The July 15, 2013 letter from the Children's Aid Society of Toronto supports a finding that the more the children are exposed to conflict between the parents (and their mother's anxieties about access), the risk of emotional harm and instability to them increases. The court has to balance the desire to increase the children's contact with the father with the risk of destabilization to them when determining how to structure access. At this point, an order of extended access, particularly in the United States, would be far too stressful for the children and would not be in their best interests.

e) The father demonstrated little sensitivity about the children at trial. He was more focused on how poorly the mother has treated him and the denial of his rights. He showed little understanding that the children might be nervous about having extended contact with him when he has had such little involvement with them. When questioned about respecting the views and preferences of the children, he answered, "they are children, they need direction".

f) The access needs to be structured both to ensure that it takes place and that it happens in an orderly manner. Despite her denials, it was clear to the court that the mother obstructed the father's contact with the children when he started the court case and when he reported her to the Children's Aid Society of Toronto. With the assistance of counsel for the children, telephone access was restored in March of 2014. The father has also acted in a unilateral and irresponsible manner at times regarding the children. In 2011, after not seeing the children for 5 years, he turned up, without notice, in the mother's backyard. He did this on one other occasion. He also attended at J.B.'s school without prior notice to the mother. I also accept the mother's evidence that he returned the children late when he did have extended access and that on one occasion he told her that he would be in Montreal with the children and he went to Ottawa without telling her. This all added to the level of distrust between the parties.

g) More access with the father should be encouraged if it is exercised in a responsible manner with a minimization of parental conflict. The children have expressed that they want contact with the father. The father provided evidence that the children enjoy contact with him in the brief time that they have spent together. The children have a new half-sibling. It would be beneficial for the children to get to know this sibling and the father's new family. The father is well-educated and may be able to assist the children with their education.

[51] The court order will provide for a gradual increase in access. The access shall take place in Canada and there will be a non-removal order. The evidence supports making the initial day visits longer than proposed by counsel for the children. Given the ages of the children, and the distance the father is traveling to exercise access, the day visits should be longer if they are to be meaningful.

[52] J.B. is 16 years old and is old enough to decide if she wants to exercise her access. Any access order regarding her will be subject to her discretion as to whether she wishes to exercise it.

[53] In the event that the father only wishes to exercise access to M.B., J.B. shall be entitled to attend on these visits, if requested by M.B.

[54] The goal of this order is to facilitate positive access with the father, while protecting the children from the stress of the parental conflict. It is always hoped that access proceeds well and can progress further. The father will be entitled to return to court and seek a review as to whether access can be further extended and take place outside of the Province of Ontario. This review motion cannot be brought before two years from this date. This does not preclude either party from moving to change this order based on a material change in circumstances.

Part Five – Child Support

5.1 Evidence

[55] The mother asks that the court impute the father's annual income at $60,000 for child support calculations. The father asks the court to base child support on his annual income of $14,400.

[56] The father is well-educated, but has never earned substantial income. He obtained a Master's Degree in Business Administration in Austria. When he came to North Carolina in 2010, he took courses to become a Certified Management Accountant at Duke University. He did not complete this program and instead took courses to become an Enrolled Agent, his present occupation.

[57] The father testified that he had difficulty obtaining employment when he came to the United States. He was able to find part-time work at a gas station earning a little over $8 per hour. He then found a job working at Super Target for a similar wage. The father said that he started his business at the end of 2012, but did not commit to it full-time until the start of 2014. In 2013, he said that he quit his job at Super Target, had a temporary tax preparation job as an independent contractor and operated his business part-time. The father testified that his annual income prior to 2013 was consistently under $8,000. In his financial statement prepared for trial, he deposed that his gross 2013 income from all sources was $15,431 and he projected that his 2014 income (after expenses) would be $14,400.

[58] The father provided his 2013 income tax return (a joint filing with his wife). It reflected that his spouse had annual income of over $95,000.

[59] The mother's position is that the father is earning or is capable of earning $60,000 per annum. In support, she points to the lifestyle of the father. He owns a home jointly with his spouse in North Carolina. Further, since the court case started, he has bought a vehicle (jointly with his spouse) worth more than $50,000. The mother also argues that the father is dishonest and manipulative and that the court can have no confidence in the figures he provides.

5.2 Legal Considerations

[60] Section 19 of the guidelines provides that the court may impute to a spouse "such amount of income … as it considers appropriate" and provides a non-exhaustive list of such circumstances. The relevant portions of section 19 read as follows:

19.(1) Imputing Income – The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include,

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of any child or by the reasonable educational or health needs of the spouse;

[61] A self-employed person has the onus of clearly demonstrating the basis of his or her net income. This includes demonstrating that the deductions from gross income should be taken into account in the calculation of income for support purposes. See: Whelan v. O'Connor, [2006] O.J. No. 1660.

[62] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. See: Drygala v. Pauli, [2002] O.J. No. 3731.

[63] The Ontario Court of Appeal in Drygala v. Pauli set out the following three questions which should be answered by a court in considering a request to impute income:

1. Is the party intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his reasonable educational needs?

3. If not, what income is appropriately imputed?

[64] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See: Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552.

[65] The court stated in Drygala v. Pauli that there is no need to find a specific intent to evade child support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[66] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. When an employment decision results in a significant reduction of child support, it needs to be justified in a compelling way: See: Riel v. Holland, at paragraph 23.

[67] The third question in Drygala v. Pauli, supra, is: "If there is no reasonable excuse for the payor's under-employment, what income should properly be imputed in the circumstances"? The court must have regard to the payor's capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties' relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

[68] A person's lifestyle can provide the criteria for imputing income. See: Aitken v. Aitken, [2003] O.J. No. 2780 (SCJ); Jonas v. Jonas, [2002] O.J. No. 2117 (SCJ); Price v. Reid, 2013 ONCJ 373.

5.3 Analysis

[69] The court finds that the father is earning, or is capable of earning, more income than he has represented earning. However, it does not find that he is earning income at the level the mother seeks to impute to him.

[70] The court did not have much confidence in the father's evidence. It found him to often be evasive and defensive during the trial. The court also considered the mother's evidence about the father's chronic dishonesty and treated the father's evidence with caution.

[71] The father is financially sophisticated. He has been able to lead a far better lifestyle than the mother and the children, while sending her relatively little support.

[72] The father's statements about his annual income are inconsistent with his lifestyle and the amount of support he says that he has paid. According to the father, he has been paying support of $4,000 to $5,000 per year (sometimes more, he said), despite declaring that he was earning under $8,000 per year. He is a homeowner and, together with his spouse, recently bought a luxury vehicle. He has traveled frequently to Canada.

[73] The father provided a self-employment worksheet for 2014 (with no back-up documentation). It reflects gross income to July 22, 2014 of $15,033. The net income reflected on the worksheet is inconsistent with the father's evidence about his projected gross income for 2014, as the worksheet shows a net loss of $10,034 for this period. It appears from a review of the worksheet that the father is aggressively deducting expenses from his income for tax purposes.

[74] The court finds that there is no reasonable excuse for the father's under-employment.

[75] The more difficult issue is determining what the father is actually earning or is capable of earning. The father is highly educated and very intelligent. He has two post-secondary degrees and a certificate degree as an Enrolled Agent. He testified that Enrolled Agents are usually paid $23 to $25 per hour. The father also has experience from working in construction jobs in Europe. He has no health limitations. On the surface, it appears that he is capable of earning a substantial income.

[76] However, the court is very sympathetic to the challenges the father faces as a recent immigrant to the United States. His European education does not necessarily translate into job opportunities in the United States. It is not the father's first choice to work at Super Target.

[77] The court finds that the father has earned income, or is capable of earning income, sufficient to generate the $4,000 to $5,000 per annum that he deposed that he has been paying for child support for a long time. It finds that he is capable of paying child support of $400 per month at this time. This is the guideline table amount based on an annual income of $27,600. Further, the court accepts the father's evidence that his business is starting to "go well" and finds that by the start of 2015 he will be earning, or will be capable of earning, $35,000 per annum. The guideline table amount for this level of income will be $508 per month and the father will pay this amount starting on January 1, 2015.

[78] The father provided evidence that he paid support regularly in 2013 and 2014. Balancing the factors set out above, the court will not order him to pay any further support for the period prior to August 1, 2014.

[79] The father made an alternative closing argument that he pay no support due to the high access costs he will incur. This was not pleaded. In the absence of such pleading, I am not prepared to grant this relief. See: Rodaro v. Royal Bank of Canada, [2002] O.J. No. 1365. Even if pleaded, the father did not provide the evidence necessary to show that he met the two-part test set out in section 10 of the guidelines. See: Matthew v. Mathews, 14 R.F.L. (5th) 129. He did not demonstrate that paying the guideline table amount would create hardship that is exceptional, excessive or disproportionate, not merely awkward or inconvenient. See: Hanmore v. Hanmore, 2000 ABCA 57. He also did not show that his standard of living is lower than the mother's.

[80] The father has made many of his support payments directly to J.B. This should not continue. The mother needs the payments to be made directly to her (through the Director of the Family Responsibility Office), to properly support the children. The father is put on notice that he will not receive any future credit for monies paid directly to the children.

Part Six – Conclusion

[81] There shall be a final order as follows:

a) The mother shall have sole custody of the children.

b) The father shall have the rights of information set out in subsection 20 (5) of the Children's Law Reform Act.

c) The father shall not remove the children from the Province of Ontario without prior court order.

d) The father shall have access to the children on the following terms and conditions:

i) The access set out below shall be in J.B.'s discretion. She does not have to attend on the access visits. In the event that the father only wishes to exercise access to M.B., J.B. shall be entitled to attend on these visits, if requested by M.B.

ii) The father's access shall take place in the Greater Toronto Area. For the purpose of this order, the Greater Toronto Area shall be defined to be the City of Toronto and the Regional Municipalities of Durham, York, Peel and Halton.

iii) When the father comes to Toronto, he can have access to the children on both Saturdays and Sundays from 10:00 a.m. until 7 p.m. If the father comes to Toronto at any time the children are not in school, he may also have access to the children on Wednesdays from 10:00 a.m. to 7 p.m.

iv) After 6 day visits, the above weekend visits shall be extended to Saturdays at 10:00 a.m. until Sundays at 7 p.m. The Wednesday visits will continue if the children are not in school.

v) After 4 overnight visits as set out above, the weekend overnight visits shall take place from Fridays at 6:00 p.m. until Sundays at 7 p.m. The Wednesday visits will continue if the children are not in school.

vi) The father shall have telephone access to the children twice each week at times to be coordinated with the children. Provided that the mother does not incur long-distance charges, she is to facilitate telephone contact on her home land-line.

vii) With the exception of summer access in 2014, the father must provide the mother with a minimum of 30 days written notice of when he will be in Toronto to exercise access.

viii) For the balance of the summer of 2014, the father may exercise the ordered access on 48 hours written notice.

ix) The parties are to exchange email addresses. Email is to be used to coordinate access and to exchange any information about the children and not to demean the other party.

x) When the father exercises overnight access he shall advise the mother where the children will be sleeping overnight and always ensure she has a contact number to reach them.

xi) The issue of whether access can be extended and take place outside of Ontario may be reviewed, at the request of the father, but such review motion shall not be brought earlier than two years from today. This does not preclude either party from seeking to change the order based on a material change in circumstances.

e) Neither party shall demean the other party to the children.

f) The father shall pay child support to the mother as follows:

i) Based on an imputed income of $27,600 per annum, the sum of $400 per month, being the guideline table amount for two children, on the first day of each and every month, starting on August 1, 2014.

ii) Based on an imputed income of $35,000 per annum, the sum of $508 per month, being the guideline table amount for two children, on the first day of each and every month, starting on January 1, 2015.

g) The father, by June 30th each year, shall provide the mother with a complete copy of his Income Tax Return for the prior year.

h) A support deduction order shall issue.

i) Unless this order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and the amounts under the order shall be paid to the Director who shall pay them to the person to whom they are owed.

j) The balance of claims contained in the application and the answer/claim are dismissed.

[82] If either party seeks costs, they are to make written submissions by August 15, 2014. The other party will then have until August 25, 2014 to make written response. The submissions should not exceed three pages, not including any bill of costs or offer to settle.

Justice S.B. Sherr

Released: August 5, 2014