Court Information

Court File No.: D71938/14

Date: April 6, 2017

Ontario Court of Justice 47 Sheppard Avenue East Toronto, Ontario M2N 5N1

Parties

Between: Martin Kruja (a.k.a. Martin Lazi), Applicant (father)

And: Lediola Elezi, Respondent (mother)

Before: Justice Robert J. Spence

Trial Heard: April 3 and 4, 2017

Reasons for Judgment Released: April 6, 2017

Counsel

Applicant: Father in person

Respondent: Ms. Lisa Johnson

Introduction

[1] The parties are the natural parents of two children, Va.. who is a little 5 year old boy, and Pa.. who is a little 3 year old girl.

[2] The parties met in January 2005, and they cohabited off and on until October 21, 2014, when they finally separated.

[3] The father then issued his Application later the same month, making a claim for joint custody of, and access to the children, specifically 50-50 shared parenting.

[4] The mother responded with her own Answer/Claim, seeking sole custody, supervised access to the father, child support and a restraining order.

Issues

[5] There are three issues for the court to decide:

1. What custody order is in the best interests of the children – joint custody as claimed by the father, or sole custody as claimed by the mother?

2. What access order is in the best interests of the children – 50-50 parenting as claimed by the father, or a reduced form of access as requested by the mother?

3. How much income ought to be imputed to the father for the purposes of child support?

Background

[6] In this section of my reasons I provide a brief overview of what has gone on between the parties, both before and subsequent to the commencement of the present litigation.

[7] Almost from the outset, the relationship between the parties was fraught with conflict and calls to the police. The mother alleges that the father abused her verbally and emotionally. Some of the abuse occurred in the presence of the children.

[8] Virtually none of the mother's evidence in chief was challenged by the father. Here is just one extract from the mother's evidence in chief about the father's abusive behavior toward her:

The Applicant was verbally, emotionally, psychologically, sexually and physically abusive towards me. The Applicant did not address me using my name. He addressed me as "stupid", "ugly", "bitch". When he came home in the early morning he would wake me up and demand that I make him food. Sometimes would tell me to rub his feet and to put his shoes on for him. He had numerous affairs.

I have not previously shared the extent of the abuse I suffered at the hands of the Applicant because I was ashamed. I was also afraid that if the police were involved I could lose my children.

[9] It was the last police involvement which led to the parties' final separation. On the morning of October 21, 2014, the mother says the father was intoxicated and violent. He had taken the mother's car the night before and drove it to a bar, where he apparently consumed a substantial amount of alcohol.

[10] When he returned home, he did not bring the car with him. The mother required the car to transport the children to daycare.

[11] When the mother complained to the father about the missing car, he became verbally abusive and threw a makeup mirror at her. The children were present at the time.

[12] The mother ran out of the room with Va.. behind her; and when the mother slammed the door closed to keep the father away, Va..'s hand was caught in the door resulting in bruises to his fingers. He did not require medical treatment.

[13] The mother called the police and they arrived at the home at about 8:25 a.m. The police observed the father to be in a "consumed alcohol" condition.

[14] The police cautioned the father and they asked him to leave the home. The police did not observe any physical injuries to the mother and, accordingly, the police did not lay any charges.

[15] The father has a lengthy record of police involvement, including occurrences for fraud, weapons offences, driving under suspension, careless driving, impaired driving and assault with a weapon.

[16] In 2012 he was involved in a fight which resulted in a number of stab wounds to himself. He had to be taken to hospital.

[17] Father readily acknowledged that when he was in his 20's, he was a "wild youngster". The 2012 incident occurred when he was 28 years old. The child Va.. had been born the year prior, in 2011.

[18] The father also acknowledged that he had a tendency to associate with dangerous persons, but that most of this was before the birth of his children, according to the father.

[19] The maternal grandfather testified that the grandparents and the parents lived in adjoining townhouses. The maternal grandparents could often hear loud and violent fighting in the parents' home.

[20] The mother works as a server at a restaurant. Her income is very modest.

[21] The father claims not to work. When he was asked by mother's counsel how he spends his days, he replied: "Why should you know", followed by the statement "I have a great life".

[22] During the course of the litigation, the courts made a number of temporary orders, mostly on consent, including joint custody, then sole custody to the mother, and gradually expanding access to the father, as well as child support.

[23] On January 20, 2015, Justice James Nevins made a consent order which included a requirement that father pay child support to the mother in the amount of $100 per month, based on an income of $12,000, support to commence February 1, 2015.

[24] This support order was subject to the requirement that father make full financial disclosure by February 28, 2015.

[25] At trial, it became apparent that father has never paid any of the ordered child support. When he was asked why, he replied: "I'm not going to pay her because I don't trust her".

[26] The statement of arrears from the Family Responsibility Office ("FRO") revealed arrears of support owing in the amount of $2,600 as at the date of trial.

[27] In an affidavit the father swore on November 20, 2015, he stated that he will "continue to pay the ordered support". However, he never got in touch with FRO to arrange for payments to be made, testifying: "why would I want to pay", and then "if I owe money, come and get it".

Custody

[28] The father seeks joint custody. The starting point for determining custody and access is section 24 of the Children's Law Reform Act, which mandates the court to decide on the basis of what is in the best interests of the children.

[29] Section 24 lists a number of factors the court should consider in deciding this issue. However, for the purposes of these reasons, I do not find it necessary to list those factors, in determining what is in the children's best interests.

[30] The following facts will amply suffice.

[31] Joint custody implies the necessity for the parents to work cooperatively with one another. However, the father has no interest whatsoever in working cooperatively with the mother. In fact, he would be happy for the children not to have a mother at all.

[32] Here are some of the comments he made about the mother during his trial testimony:

• "I don't care about the mother, why would I";
• "she's terrible, she always lies";
• He referred to the mother's "whoring";
• "as far as I'm concerned you [the mother] might be dead";
• [but] "I will definitely take her back if her parents pay me $500,000"; and
• [as noted earlier] "I'm not going to pay [child support] because I don't trust her".

[33] The evidence also revealed to the court that the father wants his parenting with the children to be on his terms, and his terms only.

[34] One of the most pointed examples of this occurred in the trial testimony regarding the children's Christmas concert in December 2016 at the daycare centre which they attend.

[35] The concert took place on the father's access day, specifically, on the day that he was to pick up the children from daycare. The mother, the maternal grandparents and the father all attended the concert. This is what happened:

Pa.. was in the first song and she sang her heart out. She was so happy and proud. We waited for the children's next song which was later in the program. When it was their turn, they did not come out. The daycare director . . . told me that the Applicant had removed the children from the daycare and that she had tried to encourage him to let the children stay for the concert with their friends, but he refused. The children missed the rest of the concert, the party afterwards with Santa and receiving a gift with the rest of their friends. I was not able to have contact with the children over the weekend because they were with their father, however, when they returned home on Monday, they were still upset.

[36] On cross-examination, the father was asked why he would not allow the children to remain for the entire concert and the party afterwards with their friends. The father responded "why would I, it was my access time".

[37] The daycare subsidy which mother applied for and receives is dependent upon the children not missing more than a specified number of days throughout the year. It is also dependent upon the children not being picked up from daycare before 4:30 in the afternoon, failing which the afternoon portion of the daycare subsidy can potentially be eliminated.

[38] And yet, despite this the father has chosen not only to keep the children away from daycare on a number of his access days but, as well, to pick them up early from daycare.

[39] He has picked them up early notwithstanding more than one temporary court order which stipulates that his access is to begin with pickup from daycare at 4:30 p.m.

[40] What is his stated justification for disobeying the court orders? He said "I want to maximize my time with my kids".

[41] In October 2016, he took the children to the Dominican Republic for 5 days, contrary to the order of Justice Melanie Sager, dated September 23, 2016 which permitted him to remove the children from daycare for 4 days. This was an order which the father agreed to and, yet, just weeks later, he took it upon himself to ignore that order.

[42] Justice Sager also ordered the father to facilitate Skype communication between the children and the mother while they were on this vacation. However, he failed to do so. At trial he stated that while the resort he and the children were at had internet, "I couldn't get it".

[43] What the foregoing reveals to the court is that regardless of what a court may order, the father will do things the way he wants to do them, particularly if he is able to diminish the mother's role in the lives of the children.

[44] In Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.), the Ontario Court of Appeal made it clear that an order for joint custody is inappropriate

Where there is no evidence of historical co-operation and appropriate communication between the parents, [and the parents are simply hoping] that it would improve the parenting skills of the parties (at paragraph 2).

[45] And in Ascento v. Davies, [2012] O.J. No. 3423, Justice Stanley Sherr had the following to say, at paragraph 34:

The father also showed little insight into the importance of paying appropriate child support. He has made one child support payment since . . . It makes me question his judgment and reinforces my impression of him that he wants his relationship with the child to be only on his terms. This makes him a very poor candidate for a joint custody arrangement.

[46] The highlighted portions of the foregoing are, in my opinion, entirely apposite to the facts of this case.

[47] The father acknowledges that the mother has made all of the major decisions in the lives of the children and that she is the children's primary caregiver. And yet his actions reveal that regardless of the children's needs, regardless of what a court might order him to do, he will act in the way he chooses.

[48] Father's request for joint custody is entirely unrealistic, and has no basis either in fact or in law.

Access

[49] All of the court's comments and observations about the father in the "Custody" section of these reasons are equally applicable to the court's consideration of the access issues.

[50] During the course of the current litigation, the father constantly pressed for more and more access to the children. The mother would consent to these requests.

[51] Ultimately, by Justice Sager's consent temporary order dated April 1, 2016, the mother had agreed to the following access to father:

1. Week one: Friday from daycare at 4:30 p.m. to Monday morning return to daycare.

2. Week two: Wednesday at 4:30 p.m. from daycare to Friday morning return to daycare before the father's weekend.

3. Commencing Tuesday April 19, 2016, and every other Tuesday thereafter, the father to pick up the children from daycare at 4:30 p.m. and keep them until 6:00 p.m. The mother shall pick up the children from the father's home.

[52] At the outset of this trial I asked the father what parenting time he was seeking. He responded that he wanted an order for 50-50 parenting time as that was in the best interests of the children.

[53] The mother is seeking a more restrictive form of access. Apart from special days, including Father's Day, Mother's Day, Christmas and school breaks, she is seeking a routine which would provide as follows:

1. Alternate Fridays from 4:30 p.m. pickup from daycare to Sundays 6:00 p.m. return to mother's home.

2. On the intervening week, alternate Wednesdays from 4:30 p.m. pickup from daycare to Thursday morning drop-off at daycare by 8:30 a.m.

[54] Her access requests are more expansive than this, but the above sought-for access would constitute the normal or typical access routine for the children.

[55] The court is very concerned about the father's attitude toward the mother and how the toxicity which flows from his attitude might possibly spill over onto the children.

[56] Apart from his attitude toward the mother, I am deeply concerned about what appears to be a distinct lack of child focus parenting by the father.

[57] The daycare director testified that daycare for the children is not just about a caretaking function. Rather, there is a social and educational component which is designed to benefit the children.

[58] The daycare teachers are all certified as Early Childhood Educators, and they design program plans for each day the children are in attendance at the daycare. These include such things as science programs and other creative activities. Each class has about 20 children and two staff teachers.

[59] The director testified that when the father picks up the children early from daycare, they miss out on these programs which, the director says, they enjoy.

[60] They also miss out on socializing with their peers, which they also enjoy.

[61] The father does not seem to understand these points by proclaiming that on his access days, he should be free to pick up the children whenever he wants because it is "my access time".

[62] In a letter dated June 6, 2016, the director reported that the children were missing a number of specified dates at the daycare; she also reported that on 12 specified days in April and May 2016, the average pickup time was 3:30 p.m. These occurred on days when the father was picking up the children, and in direct violation of a court order that he was to pick them up at 4:30 p.m.

[63] The father readily acknowledged that he kept the children out of daycare when he chose to do so on his access days because when the children were with him they were having "too much fun".

[64] In other words, the father is focused on what he believes are his rights, what, in effect belongs to him, rather than focusing on what is best for the children.

[65] The same considerations apply when the father intentionally keeps the children out of daycare for many days – as he acknowledged he has done – rather than ensuring the children have the benefit of the socialization and education that would be afforded to them through their regular attendance at daycare.

[66] The incident of October 21, 2014 which led to the final separation of the parents is another example of the father's lack of focus on his children. To direct verbal abuse toward the mother, and to throw a mirror at her in the presence of one or more of the children, is a clear indication to the court that he does not think before he acts. That kind of lack of self-regulation, that willingness to expose the children to domestic violence reveals to the court that the father's judgment and his parenting skills require considerable upgrading.

[67] On cross-examination, the father was asked about his proposed care for the children, particularly since he was requesting equal shared parenting. For example, he said that he lives with his mother who helps him to care for the children, and he was asked why he was not calling his mother as a witness. He responded "why would I?"

[68] He was also asked to describe his parenting plan for the children as he provided no such plan in his evidence in chief. He responded that he didn't find it necessary to present such a plan, as it would be incumbent upon the "judge" to do this.

[69] As with my earlier comments under the "Custody" section of these reasons, much of what I observed from the evidence reveals a clear lack of child-centered parenting by the father. The father has not really given much thought to what it means to be a parent, certainly not in a meaningful way as regards his own two children.

[70] Courts must be cautious about making decisions based on the demeanour of a witness. Nevertheless, father's demeanour during his testimony was entirely consistent with his spoken words. He delivered his inappropriate and derisive comments with a voice and body language which was suffused with haughtiness, arrogance and a sense of self-righteous entitlement.

[71] After the conclusion of the evidentiary portion of the trial, I asked the father the same question that I asked him at the outset of the trial, namely, why was he seeking equal shared parenting. More specifically, I wanted to hear from him why he believed that equal shared parenting was in the best interests of his children.

[72] In an effort to help direct him, I asked him to tell the court what, in the evidence that was adduced in the trial, supported that request. His response was that he is the father and the children are entitled to have him present 50% of the time.

[73] There was nothing in the evidence that he could point to which supported his belief that equal shared parenting would be in the best interests of his children.

[74] I considered the evidence very carefully in order to find any basis at all for awarding the father anything remotely close to shared parenting. That evidence simply did not exist.

[75] Regrettably for the father – and indeed for the children – the evidence starkly pointed toward a substantial reduction in the father's access.

[76] Had it not been for the mother's position that father ought to have the kind of access she requested, I would have been inclined to order an even more restrictive form of access.

[77] My concern for the children is the danger that the father's toxic and abusive attitude toward the mother will cascade onto them. And the more expansive is the access the greater is the opportunity for this to occur.

[78] I will have more to say about this in the Conclusion section of these reasons.

Child Support

[79] The father's dismissive attitude toward court orders seems to know no bounds. That attitude was more than amply demonstrated when it came to the financial aspects of this litigation.

[80] As I noted at the outset, the father was ordered to pay a very low amount of child support, specifically, $100 per month, beginning February 1, 2015. In the more than two years which has elapsed since that order was made, he has not paid any support to the mother.

[81] Father served the mother with a motion, returnable February 9, 2017, to obtain police records. Justice Sager dismissed his motion and ordered the father to pay costs in the amount of $300. The father has not paid any of those costs.

[82] At trial he was asked why he did not pay the costs. His response was "who do I pay it to?"

[83] On July 15, 2015 Justice Nevins made an extensive financial disclosure order, most of which the father has failed to produce. Some of those non-productions include:

1. Full income tax returns beginning with the year 2014;

2. Most recent statement of earnings, including details of salary or other income paid to him;

3. Details of any employment insurance, social assistance, pensions or other types of income received;

4. A complete job search list showing names, address, positions applied for, dates of applications;

5. A current resume; and

6. Details of car financing and proof of insurance.

[84] In his sworn affidavit dated November 20, 2015, the father deposed that until 2009 his earnings were in cash.

[85] He deposed in that affidavit that he is being supported by his parents. However, he has provided no documentary evidence to substantiate that assertion.

[86] On March 3, 2017, mother's counsel served on father a Request for Information. Pursuant to that request, the father failed to provide:

1. Substantial documentation and information pertaining to a business in which the father has been, or currently is involved, namely, Plumbers on Demand Toronto APP;

2. Substantial documentation and information pertaining to another business in which the father has been, or currently is involved, namely, Plumber on Demand;

3. Substantial documentation and information pertaining to a third business in which the father has been, or currently is involved, namely, Lazi Ventures Inc. ("Lazi").

[87] It was only following service of the Request for Information that father disclosed, for the first time in this litigation, the very existence of Lazi. The disclosure that the father did provide, reveals the following:

1. Lazi was incorporated on December 30, 2014, only two months after the parties separated;

2. Lazi was incorporated by the father;

3. There are three different address shown for the business, and the father did not provide leases for any of the addresses, despite that information being requested in the Request for Information;

4. Lazi's income for 2016 was $59,485; and

5. Father's line 150 income on his personal 2016 Notice of Assessment is $320.

[88] Father acknowledged in cross-examination that he did not know any of the expenses attributable to Lazi which, he nevertheless says, ought to be deducted from the income of $59,485.

[89] Father testified that Plumber on Demand is an inactive business. However, a recent photograph, which father verified as accurate, showed four vans parked side by side, all with the name Plumber on Demand imprinted on the vans, together with a phone number for customers to call.

[90] Father testified that one of the van plates is registered in his name; the other plates are owned by his mother, his father, and his friend Wesley Lewis. Father described Mr. Lewis as "one of my best friends".

[91] Father testified that he does not pay anything for the parking spaces for the vans because the owner of the building and his friend Mr. Lewis provide the parking spaces for free.

[92] The Articles of Incorporation of Plumbers on Demand Toronto APP reveal that this business was incorporated by the father and his friend Mr. Lewis in 2014.

[93] The maternal grandfather testified, and provided documentary evidence, that he receives monthly bills from Rogers Wireless addressed to Plumber On Demand for "wireless business phone services". The most recent invoices for March 2017 show at least four different wireless telephone numbers for this business.

[94] For some reason, which the maternal grandfather was unable to ascertain, Plumber On Demand has caused those invoices to be sent to the grandfather's home address.

[95] Clearly these invoices would suggest that Plumber on Demand is an active business, contrary to the father's assertions.

[96] Despite his having been ordered to make full financial disclosure as long ago as February 2015, none of the foregoing was provided until just days before the trial. And, again, what the father did provide was just the tip of the iceberg as compared to what he was ordered to provide, and what was sought in the Request for Information.

[97] In cross-examination, father was shown:

1. A Ministry of Transportation search disclosing a further vehicle owned by Lazi, which was not disclosed in the aforementioned photographs. He was forced to acknowledge that Lazi is in fact the owner of that vehicle;

2. One page from his Royal Bank of Canada bank statement, an account which father admitted he failed to disclose on his sworn financial statement;

3. His Equifax Report revealing the existence of a Royal Bank Visa card as at March 2017. This was not disclosed by father on his sworn financial statement; and

4. Credit cards from CIBC, Rogers Bank and Canadian Tire, none of which he disclosed on his sworn financial statement.

[98] The father misrepresented to Canada Revenue Agency ("CRA") that he was legally entitled to exercise equal shared parenting of the children. In fact, the temporary order of Justice Nevins dated January 20, 2015, gave primary residence to the mother with specified access to the father, amounting to about 4-1/2 hours per week.

[99] In April 2016 the mother was granted temporary sole custody with access to the father amounting to about 33% of the children's time.

[100] As a result of father's misrepresentation to CRA, he received – and appears to be continuing to receive – child-related tax benefits amounting to about $664 per month. In 2015 he says his benefits amounted to about $4,400.

[101] When he was confronted with this in cross-examination he was forced to acknowledge "I never had" the children 50% of the time. So why did he lie to CRA? Because "I just got what's mine".

[102] As further fallout from the father's deceit, the mother is now faced with having to repay CRA approximately $4,000, monies which she would have been entitled to receive for child-related tax benefits had the father not lied to CRA.

[103] When father was asked in cross-examination how he felt about this unfair financial burden which his own deceit imposed on the mother, he responded: "I could care less".

[104] So although mother works as a low-paid server in a restaurant, although she herself relies on social assistance, the father doesn't care in the slightest that he is not paying child support to her, that he has not obeyed a court order to pay her costs and that she is forced to repay money to CRA which she was otherwise entitled to receive.

[105] All of this from a parent who claims only to have the best interests of his children front and centre.

[106] The foregoing instances of non-disclosure and active misrepresentation are only some of the father's active attempts to hide his true financial picture from the mother and from the court.

[107] It is not necessary for the court to list every instance of non-disclosure and active misrepresentation for the court to have an accurate flavor of father's deceit.

[108] In Mackey v. Rerrie, [2016] O.J. No. 3739 (C.A.), the court stated at paragraph 6:

The most fundamental obligation of a party to a family law action is to make early, complete financial disclosure.

[109] In Khan v. Parlee, 2012 ONCJ 60, Justice Ellen Murray was faced with a parent who was operating a number of business, and who failed to make full financial disclosure. Beginning at paragraph 36, Justice Murray stated:

[36] The Child Support Guidelines, O. Reg. 391/97, as amended, determine a table amount of child support payable based on the payor's income; any contribution towards a child's special expenses is determined in reference to each parent's income. The onus is on a payor to prove his income. Section 21 of the guidelines sets out certain basic documents that must be provided in a support case, including the three most recent financial statements from a business of a self-employed individual such as Mr. Khan. Mr. Khan did not provide financial statements for any of the businesses he operates.

[37] Rule 13 of the Family Law Rules, O. Reg. 114/99, as amended, provides that a party in a support case shall serve and file a financial statement, and in that statement make "full and frank disclosure of the party's financial situation". The rule imposes an obligation to immediately correct any information that is "incorrect or incomplete", and to update the statement if there is a material change in any of the information provided.

[38] A self-employed individual such as Mr. Khan has a positive obligation to put provide a comprehensive record of gross income and expenses. The court may draw an adverse inference if such information is not provided. See Macleod v. MacLeod (1998), 81 A.C.W.S. (3d) 607, [1998] O.J. No. 3076. In Meade v. Meade, 31 R.F.L. (5th) 88, [2002] O.J. No. 3155, Justice Frances P. Kiteley described what such comprehensive disclosure entails:

[81] . . . It is inherent in the circumstances of those who are self-employed or who have irregular income and expenses, that they have a positive obligation to put forward not only adequate, but comprehensive records of income and expenses. That does not mean audited statements. But it does mean a package from which the recipient spouse can draw conclusions and the amount of child support can be established. Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary.

[110] These observations apply with equal weight to the present case.

[111] The court has an almost complete lack of evidence as to what income the father actually receives given his extensive non-disclosure.

[112] Father suggests – but with scant evidence – that he is earning nothing, or near-nothing. He says he is being supported by his mother. He provides no evidence that he is actively looking for employment. He provides no current resume to the court. He provides no evidence of a medical or other incapacity which would interfere with his ability to be gainfully employed.

[113] Despite his self-proclaimed impecuniosity, he has managed to take four vacations since 2014 – once to the Dominican Republic, and three times to Cuba.

[114] For the father, these vacations take priority over paying support for his children.

[115] In determining what income to impute to the father for child support purposes, one approach the court could take is to simply consider his revenue from Lazi, and impute that amount to him. On that basis, father's income would be $59,485.

[116] The other approach the court could take would be as set out in the Court of Appeal decision in Drygala v. Pauli. In that case, the court stated, beginning at paragraph 43:

[43] The trial judge imputed an annual income of $30,000 based on s. 19(1) (a) of the Guidelines. No reasons are given for the choice of amount. All that is said is that it is not unreasonable to believe that lucrative part-time employment was available to Mr. Pauli.

[44] Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.

[45] When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. See, for example, Hanson, supra, and Cholodniuk v. Sears (2001), 2001 SKQB 97, 14 R.F.L. (5th) 9. I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

[117] In the court's view, it is appropriate to combine the foregoing two approaches, namely, to consider the Lazi income – with no evidence of any expenses - and what is reasonable to impute, pursuant to the Drygala reasoning.

[118] On the second approach, it appears that plumbing is the primary skill which the father utilizes.

[119] The mother produced a printout dated March 21, 2017 from the Government of Canada website showing income ranges for plumbers in Toronto. According to the printout, incomes range from just under $24,000 to just over $100,000, with a "median" of $59,322.

[120] The median correlates almost exactly to the income earned by Lazi, namely, $59,485.

[121] However, I have concluded that it is appropriate to impute an income beyond this amount for two reasons.

[122] First, the father engaged in not only extensive non-disclosure but, additionally, active deceit. And following the Khan line of authority, this entitles the court to draw adverse inferences against the father.

[123] Second, the Child Support Guidelines determine a payor's obligation to pay child support, taking into account the normal or typical kinds of expenditures that a payor himself incurs, for example, rent, utilities, food, and so on. But in this case, the father says that he lives with his mother and that his mother supports him. Accordingly, none of the typical or ordinary expenses that would be incurred by a paying parent are incurred by the father in this case.

[124] Mother's counsel submitted that the court ought to impute income in the amount of $100,000 to the father. On the basis of the foregoing, it would be open to the court to do this. By so doing, the court would be giving father no benefit of the doubt whatsoever.

[125] While there is certainly a solid evidentiary and legal basis permitting the court to arrive at such an outcome, I am more inclined to give the father some consideration, rather than imputing him at the maximum possible amount.

[126] I have concluded in the circumstances that an imputation of income in the amount of $80,000 per year is fair and reasonable.

[127] I will additionally be ordering that the father make a lump sum payment of child support to the mother to compensate her for the monies she is required to repay to CRA as a result of the father's active deceit. The special circumstances of this case, including the father's deceit, entitle the mother to this lump sum award. See for example Ma v. Lu, 2012 ONSC 1441.

Conclusion

[128] Based on all of the foregoing the court makes the following order:

1. The Respondent, Lediola Elezi (hereinafter referred to as "the Respondent") shall have final sole custody of the children, Va.. [name in full to be stated in the formal order issued by the court] born July 10, 2011 and Pa.. [name in full to be stated in the formal order issued by the court] born May 13, 2013 (hereinafter referred to as "the Children").

2. The Applicant, Martin Kruja (Lazi) (hereinafter referred to as "the Applicant") shall have access to the children as follows:

a) Alternate Fridays from 4:30 p.m. pickup from daycare to Sunday at 6:00 p.m. drop off at the Respondent's home.

b) On the intervening week, alternate Wednesdays from 4:30 p.m. pickup from daycare to Thursday morning drop off at daycare by 8:30 a.m.

c) The children are not to be released from daycare to the Applicant before 4:30 p.m.

3. If the children are in summer camps or programs, the schedule in paragraph 2 shall continue except that the pickup and drop off by the Applicant shall be at the camp or program, rather than at the daycare, and shall be in accordance with the hours of the camp or program, unless the parties agree otherwise. The Respondent shall provide the Applicant with the camp or program schedule and hours.

4. The Respondent may register the children in activities of her choosing and she shall notify the Applicant in writing of the activities and the schedule.

5. The Applicant shall ensure that the children are taken to any activities and summer camps or programs, in which they are registered if they scheduled to be with him at the time.

6. Both parents may attend school events and functions, and regardless if such event falls on the Applicant's day, the children shall be permitted to participate in the full event or function.

7. In respect of holidays the regular schedule shall be followed, with the exception of Christmas/winter school break, as set out herein at paragraph 8, unless the parties agree otherwise in writing.

8. (a) With respect to Christmas access, unless otherwise agreed between the parties in writing, the children shall be with the Applicant from December 23rd at 7:00 p.m. to December 24th at 7:00 p.m. and with the Respondent from December 24th at 7:00 p.m. to December 25th at 9:00 p.m.

(b) With respect to New Years, in even numbered years, the Applicant shall have the children from December 29th at 7:00 p.m. to January 1st at 6:00 p.m. and with the Respondent from January 1st at 7:00 p.m. to January 2nd at 11:00 a.m. On odd numbered years, the Respondent shall have the children from December 29th at 7:00 p.m. to January 1st at 6:00 p.m. and with the Applicant from January 1st at 7:00 p.m. to January 2nd at 11:00 a.m. Regular schedule resumes on January 2nd.

(c) The remainder of the school break shall be shared equally, however, the children shall be with the Respondent on the day prior to school resuming.

9. The children shall be with the Respondent on Mother's Day from 10:00 a.m. to 6:00 p.m. regardless of which parent is normally scheduled to be with the children, and the children shall be with the Applicant on Father's Day from 10:00 a.m. to 6:00 p.m. regardless of which parent is normally scheduled to be with the children.

10. All pickups and drop-offs on non-daycare/school days shall be effected by the father at the mother's home, unless the parties otherwise agree, in writing.

11. The Respondent may have daily telephone, Facetime, or Skype access with the children while in the care of the Applicant at a time to be mutually agreed upon, failing which at 7:00 p.m. including when the Applicant is travelling with the children.

12. Either party may obtain information regarding the children directly from the children's teachers, doctors, and other professionals about the health, education and wellbeing of the children in accordance with section 20(5) of the Children's Law Reform Act.

13. The Applicant shall pay ongoing child support to the Respondent for two children in the amount of $1,172.00 per month based on an imputed income to the father in the amount of $80,000.00, support to be commence November 1, 2014.

14. The Applicant shall pay 50% of the children's section 7 expenses, including: medical/dental expenses not covered by either party's insurance; summer camps; and extraordinary extra-curricular activities in which the children may be registered. The Respondent shall provide the Applicant with receipts and he shall reimburse her within 14 days of receiving the receipts. If he fails to do so, the Respondent may request the Family Responsibility Office to enforce.

15. In the event that the Respondent no longer qualifies for daycare subsidy, the Applicant shall pay 50% of the after-tax cost of daycare directly to the daycare when due. However, if the Respondent is no longer eligible for a subsidy because of the Applicant's failure to abide by this Court order, he shall pay 100% of the after-tax cost of the daycare directly to the daycare when due. If he fails to pay daycare expenses as set out herein, the Respondent may request the Family Responsibility Office to enforce such payments.

16. No later than June 30, 2017, the Applicant shall reimburse the Respondent for any amounts due and owing to Canada Revenue Agency ("CRA") as a result of his advising CRA that he has shared custody, such amount to be determined conclusively by CRA documentation which the Respondent shall convey to the Applicant. Such amount is currently stated by the Applicant to be $4,000.00. This amount shall be enforceable as child support.

17. The Respondent may apply for passports for the children and any renewals of passports for the children without the Applicant's signature.

18. The Respondent shall retain all of the children's legal documents.

19. The parties shall immediately provide each other with an email address for communication regarding the children only. They shall advise each other in writing within 24 hours of any change in his or her email address.

20. In the event of an emergency respecting the children, the party with whom the children are situated shall telephone the other to advise him or her of the emergency as soon as is possible.

21. Each party shall advise the other in writing of any change in address, telephone number, or email address, within 24 hours of such change.

22. Either party may travel with the children outside of Canada, without the other's written consent for a period not to exceed 14 days per year. The traveling parent shall provide the other with written notice of the travel plans at least 30 days prior to any travel and advise of the: mode of transportation and if an airline, the flight number and times; destination, dates, and contact information for the children while they are away. If the Applicant requires the children's passports for travel purposes, the Respondent shall provide the passports to him and the Applicant shall return the passports to the Respondent forthwith upon the children's return from travel.

23. For as long as child support is to be paid, the Applicant and the Respondent, if applicable, must provide updated income disclosure to the other party each year, no later than June 30th in accordance with section 24.1 of the Child Support Guidelines.

[129] Should the mother seek her costs of the trial, she shall file her written submissions by 14B motion form within 21 days of the date of this decision. Submissions shall not exceed two pages in length, exclusive of any attachments, including a Bill of Costs. Father is at liberty to respond to the mother's costs submissions by filing similar material within 21 days thereafter.

[130] I have some concluding words for the parties.

[131] As I noted earlier, I would have been inclined to order a more restrictive regime of access, but for the mother's request for more liberalized access to the father. In fact, all of the access which I am providing to father, as set out in paragraphs 2 to 9 in the Conclusion of these reasons, is access which the mother herself specifically requested the court to order.

[132] Nevertheless, this does not relieve the father of the obligation to ensure that he complies fully with every aspect of this order, both in terms of days, as well as times, including the times for pickups and drop-offs.

[133] I am compelled to state this because of the father's extensive history of disobeying court orders during the course of this litigation.

[134] Nor does it relieve the father of the burden of ensuring that none of his toxic feelings about the mother spill over onto the children, either directly or indirectly. Were that to occur, the potential emotional harm to the children would be such that the court might well be inclined to either suspend access, or move access into a supervised setting.

[135] I encourage the mother to monitor this very closely. And I invite her, in the event that serious problems do arise, to bring a Motion to Change the father's access. However, she should refrain from doing so unless she has clear and cogent evidence that the best interests of the children require such a change.

[136] I trust that the father will take the court's comments very seriously, understanding that he risks permanently damaging the relationship between the children and himself should he choose to continue as he has in the past.

Justice Robert J. Spence

April 6, 2017