ONTARIO COURT OF JUSTICE

DATE: May 2, 2018

COURT FILE NO.: Toronto DFO-11-11079-01

BETWEEN:

HELENA JANIK

Applicant (Responding Party)

— AND —

JERZY DROTLEF

Respondent (Moving Party)

Before: Justice Alex Finlayson

Heard on: December 20, 2017, January 10 & 19, 2018, and February 14, 2018

Reasons for Judgment released on: May 2, 2018

Helena Janik ........................................................................................ on her own behalf

Marek Z. Tufman ................................................................ counsel for the respondent(s)

JUDGMENT

ALEX FINLAYSON J.:

PART I: NATURE OF THIS PROCEEDING

[1] This is my judgment concerning the Respondent father's Motion to Change the child support Order of Justice Penny Jones dated January 10, 2012.

[2] The moving party in this Motion to Change is the Respondent father, Jerzy Drotlef. The responding party is the Applicant mother, Helena Janik. The parties have two children for whom Jones J. ordered child support, namely Anastasia Helena Janik-Drotlef, born July 20, 2003 (now age 14) and Jerzy "Julian" Janik-Drotlef, born October 29, 2005 (now age 12).

[3] On January 10, 2012, Jones J. presided over an uncontested trial. She imputed an income of $200,000 to the father, and ordered him to pay child support of $2,572 per month commencing March 1, 2011. She also made a retroactive order for a further period of time going back about 3 years from the date of the Application and fixed arrears at $54,000 as a result, for the period March 1, 2008 to February 28, 2011. She ordered the father to pay $1,500 in costs to the mother, enforceable through the Family Responsibility Office ("FRO"). And lastly, she required the parties to exchange disclosure annually pursuant to section 24.1 of the Child Support Guidelines, O. Reg. 391/97 as amended (the "Guidelines").

[4] The father did not pay what he was ordered to pay by Jones J. As of January 1, 2018, the father owed child support arrears of $160,553.77.

[5] The January 10, 2012 trial was uncontested because on October 18, 2011, Justice Ellen Murray noted the father in default. Before this, Murray J. gave the father an extension of time to file his pleadings and made two disclosure Orders, with which he did not comply.

[6] The father's non-compliance continued after the January 10, 2012 Order, right up until this trial. First, he launched another Motion to Change in Brampton. Justice William Sullivan dismissed that Motion in 2016 for non-disclosure, with leave to re-file a fresh motion, upon payment of the cost order Sullivan J. made on the dismissal. Then, on the first day of this trial, I heard and dealt with another motion respecting disclosure, and I ordered the father to comply. I also fixed and reserved costs.

[7] Noting the father in default and dismissing his first Motion to Change have not been the only remedies with which the father has been sanctioned by this Court. On March 29, 2016, the Ontario Court of Justice in Brampton made a Final Default Order against the father pursuant to the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31, as amended. In that proceeding, Sullivan J. ordered the father to pay the ongoing support each month and an equivalent amount each month towards the arrears. Since that Order, the father has neither paid the ongoing amount of support in full, let alone made sufficient payments towards the arrears. Also, in about July 2014, the father's driver's license was suspended on account of his non-payment.

[8] The father asked the Court to vary the Order for three reasons:

(a) He says he "always earned a substantially lower income" than that which Jones J. imputed;

(b) He says the mother is now in a spousal relationship with someone else, who is "in loco parentis" to the children; and

(c) He has filed for bankruptcy. He remains an undischarged bankrupt.

[9] In his closing submissions at this trial, the father submitted that I should vary Jones J.'s Order back to the date it was made, the effect of which, he said, would result in an "overpayment" and money owing to him. Alternatively, if the Court is unwilling to make an Order that results in the mother having to repay the father, then he argued that I should merely erase the arrears. His alternative submission is in line with what he pleaded in his Motion to Change.

[10] The mother conceded that there has been a change in circumstances. However, she disagreed that the Court should vary the Order back to the date it was made. She submitted that the Court ought not go behind the March 21, 2016 Order, when Sullivan J. dismissed the last Motion to Change. She submitted that the father is intentionally under-employed within the meaning of section 19(1)(a) of the Guidelines, and that the Court ought to add back a number of expenses to the father's income that he has unreasonably deducted pursuant to section 19(1)(g) of the Guidelines. Finally, she claimed the father's contribution towards a number of special and extraordinary expenses pursuant to section 7 of the Guidelines ("section 7 expenses") that she has incurred.

[11] Other than the father telling the Court that the arrears should, at a minimum, be reduced to 0, neither parent provided the Court with calculations as to why this (or some other outcome) should prevail; neither parent provided the Court with calculations as to the gross up on any expenses unreasonably deducted by the father; neither parent provided the Court with the new table amount of support going forward; and neither parent provided the Court with calculations about the father's share of the special or extraordinary expenses claimed by the mother. The mother did submit that if the Court fixes arrears and makes an order for a repayment plan, then the father should be ordered to repay those arrears, whatever they may be, over 8 years.

PART II: BACKGROUND

[12] The mother is almost 49 years old. She is a Yoga and Pilates Instructor. She earns minimal income. In the past she aspired to be an actor and singer. She has affiliations with the Canadian Actors Equity Association and with ACTRA. However, she did not develop a career in this field and she has struggled financially over the years.

[13] The mother's Line 150 income since 2013 was:

• 2013: $10,072.00
• 2014: $14,914.00
• 2015: $19,175.00
• 2016: $20,778.90
• 2017: Tax return not filed at time of trial

[14] The mother worked at some point, years ago in Taiwan, which enabled her to save. She used those savings to later purchase a house in Toronto, then to renovate the house, and then to send the children to Montessori School. In 2002, she was in a car accident and received a settlement, which she also used to support the children.

[15] After the car accident, the mother trained as a Yoga and Pilates Instructor so she could stay at home with the children. She has refinanced her house three times to pay off debt and to fund the renovations to her house. The renovations included converting one of the rooms in the house into an extra bedroom. The mother's evidence was that when the children were younger, they shared a bedroom, but as they aged they needed their own room.

[16] Around the end of the summer 2017, the mother moved the children to New Brunswick for the start of the 2017-2018 school year. The mother had previously been in a relationship with a man, Norman Foster, here in Ontario, but she and Mr. Foster separated back in 2012, when he moved to New Brunswick. They later reconciled and pursued a "long distance relationship", until recently.

[17] Mr. Foster purchased a home in Fredericton, New Brunswick, in October 2016, and he has since added the mother to the title of this property. In anticipation of her move to New Brunswick, the mother sold her Toronto home. That sale closed in November 2017.

[18] As a result, the mother now has investments of approximately $450,000 (this came from the equity in her former home), she has credit card debt of about $30,000 and she owes Mr. Foster $5,000 from a loan he advanced to her to repair the roof of the Toronto house back in 2014.

[19] The father launched his current Motion to Change on November 16, 2016, while the mother was still in Ontario. Since her move to New Brunswick, the mother has travelled back and forth between New Brunswick and Toronto to participate in this trial.

[20] The father is almost 58 years old. He is self-employed as a real estate agent. He currently works as an agent through Sutton Group Quantum Realty Inc. He has been a real estate agent for 19 years. He is licensed with the Ontario Real Estate Association.

[21] The father's Line 150 income since 2012 has been:

• 2012: $21,285.15
• 2013: $28,703.00
• 2014: $4,735.00
• 2015: $11,920.00
• 2016: $25,139.00
• 2017: Tax Return not prepared at the time of trial

[22] These incomes are significantly lower than what Jones J. found the father's income to be at the outset of 2012, based on prior years. However, his Line 150 incomes in these years do not depict the father's true Guidelines incomes for child support between 2012 and the present.

[23] The father called a business valuator, Homeric P.S. Arvanitis, ASA-BV, to testify as to the father's income. I qualified Mr. Arvanitis as an expert in the determination of income pursuant to the Child Support Guidelines and admitted Mr. Arvanitis' Income Report dated April 26, 2017 into evidence in this trial. Mr. Arvanitis' Report purports to detail the father's income for child support purposes for the years 2012 through 2017. In most years, the income numbers according to Mr. Arvanitis increased at least twofold from what the father reported on his tax returns.

[24] According to Mr. Arvanitis, the father's "Maximum Guideline Income" was:

• 2012: $47,716.69
• 2013: $68,556.89
• 2014: $24,274.63
• 2015: $25,752.37
• 2016: $31,433.15
• 2017: $51,118.75

[25] I will address this evidence later in these reasons, but I also find that Mr. Arvanitis' report understates the father's income.

[26] As set out above, the parties have two children, Anastasia, age 14, and Julian, age 12. There is no evidence that the father has any meaningful relationship with the two children. I heard absolutely no evidence whatsoever about any attempts on his part to see the children or to pursue a relationship with them. The mother's evidence, which I accept, is that she has been the sole caregiver for the children since their births. She had no family or friends here in Ontario to assist her. She said that the time she spent here in Toronto for this trial is the longest she has been away from the children. She wants the children to receive the proper amount of child support. She said she has been asking for disclosure from the father for years and he has been avoiding his obligations.

[27] These parties met while Mr. Drotlef was still in a relationship with his former spouse, Agnieszka Drotlef. According to the mother's Form 23C Affidavit for Uncontested Trial sworn January 10, 2012, he pursued both relationships with both women simultaneously for a time, and had children in both relationships at around the same time.

[28] The father and Mrs. Drotlef have at least two children, Jakub Drotlef, born February 2, 2004 (age 14) and Milosz Drotlef, born July 3, 2005 (age 13). The father also has two adult daughters, but little evidence respecting them was called during the trial.

[29] The father eventually separated from Mrs. Drotlef. He says his separation from Mrs. Drotlef is a change in circumstances that warrants a review of Jones J.'s Order.

[30] There is a separate Order of this Court from Brampton for the support of Jakub and Milosz, and for spousal support for Mrs. Drotlef. Pursuant to the Consent Order of Justice Clay dated June 11, 2014, Mrs. Drotlef has sole custody of the boys and the father has minimal access to them. He pays child support of $500 per month based on his stated 2013 income of $33,700. He also pays spousal support to his former spouse of $200 per month according to this Order. He tendered this Order to demonstrate that the child support Order of Clay J. is based on income that is much lower than that used in Jones J.'s Order. Nevertheless, according to his financial statement sworn October 26, 2017, the father owes Mrs. Drotlef support arrears of $14,471.42 as of October 2016.

[31] The income determination, made on consent and incorporated into Clay J.'s Order, is not binding on me. Issue estoppel respecting the father's income does not apply as the proceeding resulting in Justice Clay's Order did not involve the same parties. See Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 at ¶ 20-25. Further, the Order is almost 4 years old, and so what the father and Mrs. Drotlef agreed to in 2013 does not assist me to decide what the father should pay now, nor retroactively, in light of the evidence filed in this case. Incidentally, I note that the father's 2013 income, as determined by his own expert in this proceeding, is more than double of what he agreed to with Mrs. Drotlef. And after the adjustments I make to his income for 2013 later in these reasons, the 2013 income is $107,991.43, over 3 times what the father agreed to with Mrs. Drotlef.

PART III: CREDIBILITY

[32] The father was not a credible witness. He advanced a plethora of reasons for his failure to provide disclosure and his failure to pay child support over the years. He blamed the mother, his former spouse, his accountant, counter-staff at the Court, duty counsel, and Justices Sullivan and Jones, alleging they mishandled the receipt of his disclosure. He also relies on his stated ill health as a basis to change the Order.

[33] Meanwhile, not only has he not paid child support as ordered, the evidence is that he has defaulted on his other debts, including debts he incurred to advertise to solicit clients, and including the support he owes to Mrs. Drotlef. He complained that he can no longer advertise and as such he earns less money than before.

[34] He has not paid his taxes to the CRA. This he blames on either his former spouse, his accountant or both. He has unsuccessfully tried to wipe out his debts through a bankruptcy but he remains undischarged.

[35] The father complained that he needs a driver's license to make money. He says he has reduced income because he cannot drive, yet he lost his license in the first place due to the non-payment of support.

[36] Much of the evidence the father gave concerning the expenses he deducted from his income was manufactured for this trial. Many of the receipts he tendered are illegible. Of those that are legible, many reveal expenses that were clearly not business expenses. He has deducted children's toys, clothing, furniture and household accessories, small amounts of money spent at Tim Horton's, trips to places like the Toronto Zoo and "Bird Kingdom" in Niagara Falls, and even toilet paper from his income. He claimed that all of these receipts are related to his business.

[37] The father's explanations as to his expenses at times bordered on the absurd. He put the mother to the time consuming expense of combing through his receipts. She did a good job drawing the deficiencies to my attention in her cross-examination of the father.

[38] The father's lack of credibility permeated most of the evidence he tendered. It is not just his explanation of the expenses he deducted that is problematic. That evidence significantly compromises the value of the Income Report that he seeks to rely upon. Mr. Arvanitis admitted that he did not review the father's receipts as he was not retained to conduct a "forensic" accounting. Mr. Arvanitis relied on the father's oral explanation of his expenses as the basis to make adjustments to the father's income and to decide what expenses to add back. So if Mr. Drotlef was not truthful to the Court, then I have no confidence that he was truthful to Mr. Arvanitis either. And this calls into question the reliability of Mr. Arvanitis' analysis.

[39] The father tendered almost no evidence to explain what he has done to increase his income since its decline. The explanations he did provide, as I have said above, heavily relied on blaming others.

[40] All this places the Court in a very difficult position. The Court is tasked with the job of determining the father's income accurately, to ensure that the children receive the correct amount of support. Leading up to 2012, the father ignored two disclosure orders, thereby putting Jones J. in the difficult position of determining his income based on the best income that was before her that was obtained and introduced by the mother. The fact that Jones J. found that the father's income was $200,000 without hearing from him was entirely his fault. The father placed Sullivan J. in the position of not being able to adjudicate his case given the lack of disclosure.

[41] Given the father's lack of credibility and his ongoing behaviour respecting his disclosure, it was tempting to dismiss the Motion to Change. However, I find that the evidence does support that there has been a change in circumstances since Jones J.'s Order. The mother even has conceded this.

[42] The evidence at this trial is that father's sole source of income has been his commission income for several years, and he is not earning what he earned previously. And while I disagree with Mr. Arvanitis that the father's income for child support, at most, can be no more than the total of his commissions (I will explain this below), the evidence is that the father has not been earning $200,000 since Jones J.'s Order.

[43] Therefore, I find that it would be unfair to dismiss the Motion in its entirety. However, I do not find it to be appropriate to vary the Order back to the date Jones J. made it. Nor do I accept that the father could only earn the minimal amounts that he reported to the CRA, both because of the manner in which he dealt with his expenses and on account of his lack of efforts to earn more income. I am drawing adverse inferences against the father.

[44] The Court will disallow a significant number of the father's expenses, given his failure to prove them, pursuant to section 19(1)(g) of the Guidelines. I am also imputing an income to Mr. Drotlef pursuant to section 19(1)(a).

PART IV: PRIOR LEGAL PROCEEDINGS

[45] The history of these proceedings is relevant to the questions now before the Court.

[46] The mother commenced her initial Application for child support in 2006 but did not pursue it. She then commenced another Application for child support on May 30, 2011. The following transpired in the first round of the proceedings.

[47] First, the father did not appear at the first appearance on July 12, 2011, although he had been served on June 1, 2011. The First Appearance Clerk set a date for an uncontested trial on August 22, 2011.

[48] The mother nevertheless required evidence concerning the father's income for the uncontested trial. On July 19, 2011, the mother filed a 14B Motion asking for written reports as to the father's income from various real estate agencies and other companies with whom she thought he was involved. Justice Ellen Murray granted an Order that these various organizations provide written returns concerning income to the Court pursuant to section 43 of the Family Law Act, R.S.O. 1990, c. F.3, as amended (the "FLA").

[49] Although he did not attend the First Appearance, the father did attend the Case Conference on August 22, 2011. Murray J. ordered the father to:

(a) file an Answer and a sworn Financial Statement by September 30, 2011;

(b) attach his complete tax returns, notices of assessment and statements of business activities for 2008, 2009 and 2010 to his financial statement. If 2010 was not available, then the father was to file any documents respecting his gross income and expenses for 2010;

(c) provide his tax returns, statements of business activities and notices of assessment for 2004 to 2007 to the mother by September 30, 2011;

(d) provide all documents, including any orders relating to the bankruptcy to the mother;

(e) provide evidence of demands made for payments of child support prior to September 2007;

(f) pay temporary child support in the amount of $1,200 per month based on imputed income of $83,400 commencing August 1, 2011; and

(g) as the father had raised a question of paternity, complete any DNA testing respecting Julian within 30 days.

[50] The father did not comply. He did not file a pleading or produce the disclosure ordered. On October 18, 2011, Murray J. noted the father in default. Nevertheless, she gave him another chance. She endorsed that the father could move to re-open the pleadings by November 18, 2011 on motion, but he must attach all of the documents that she previously ordered him to provide.

[51] On October 26, 2011, Murray J. made another order for the production of documents that she had previously ordered the father to provide. Specifically, she again ordered the father to produce a statement of bankruptcy affairs regarding the extent of debts that form part of the bankruptcy and when he anticipates receiving a discharge, and his tax returns and notices of assessment for 2004 to 2010.

[52] The father never brought the motion to re-open the time for filing pleadings. On January 10, 2012, Jones J. made the Order described above.

[53] In this trial, the parties referred to the mother's Form 23C Affidavit for Uncontested Trial sworn January 10, 2012 that was before Jones J. The transcript of the proceeding before Justice Jones on January 10, 2012 was also put before me. With her Form 23C Affidavit for Uncontested Trial, the mother provided the Court with an average of the father's gross incomes from 2002 to 2009. That average was $308,179.00. This evidence came from the financial information referred to in an affidavit of Brian Webb, sworn May 6, 2011, that had been filed in the father's bankruptcy proceeding in the Superior Court.

[54] Brian Webb was a Resource/Complex Case Officer with the Canada Revenue Agency. The CRA was opposing the father's bankruptcy. According to Mr. Webb's affidavit, the father then owed the CRA $1,178,986.95 for the tax years 2002 to 2008, and another $58,562.79 for GST, between August 10, 2002 and December 31, 2006. The affidavit stated that according to the CRA system, the father had gross income ranging between a low of $177,735 and a high of $555,176 during the years 2002 through 2009. His net incomes ranged between $54,029 and $513,723 in those years. His peak year was 2003. The father's income declined after that. In fact, his reported 2009 income was $177,734 (gross) and $54,029 (net).

[55] While the mother referred the Court to an average of the father's gross incomes, the mother also conceded to Jones J. that there should be some deduction from the gross incomes to account for business expenses. But the father had not provided that evidence. There was evidence before Jones J. that the father had income split with Mrs. Drotlef, and his two adult daughters in 2007 and 2008. She asked the Court to add that income to the father's. Plus, the mother pointed the Court to some other commission income that the father had earned from a debt relief company in a certain month. The mother asked the Court to annualize it.

[56] Based on the father's "inadequate disclosure", Jones J. was only able to rely on the evidence the mother was able to obtain and file. It was on that basis that Jones J. imputed an income of $200,000.00.

[57] The next Order concerning this family is that of Justice Clay dated June 11, 2014, which I referred to earlier in these reasons. On that date, the father settled his child support obligations respecting his other two boys with Mrs. Drotlef, and spousal support. Again, on consent, that Order determined his income to be $33,700.00 in 2013. I heard no evidence as to whether Jones J.'s Order was brought to the Court's attention in Brampton (or to Mrs. Drotlef's attention before she agreed to this Consent Order).

[58] At some point after Jones J.'s January 10, 2012 Order, the father commenced a Motion to Change the Order in the Ontario Court of Justice in Brampton. I was not given a copy of the father's pleadings nor the date he launched this proceeding. I was given very little information or documentation concerning what happened in Brampton at all, apart from an Endorsement and an Order, and some limited viva voce evidence in this trial. The oral evidence suggested that the father commenced this Brampton proceeding at some point in 2014.

[59] What is clear is that on March 21, 2016, Justice William Sullivan dismissed the father's Motion to Change Jones J.'s Order. The father had failed to comply with at least two disclosure orders made by the Brampton Court. Sullivan J. endorsed the following:

Today was set for a full hearing of the Motion to Change. The Moving party Mr. Drotlef did not comply with disclosure and filing order of this Court made in Sept 14/15 & Dec 14/15 in order to prosecute his Motion to Change. Mr. Drotlef has had a history of non or late disclosure. He did present a Dr. Letter today indicating he was medically unfit to attend Ct. today but he did come in any case today & this is the 1st of any medical history he presented in 2 years. He also indicated for the 1st time in 2 years that he wishes to retain a lawyer which is his right to do. He has however as a litigant to be more responsible and in that he has failed to do.

Order

1. Mr. Drotlef Motion to Change located in Vol 2, Tabs 1, 2, 3, 5, 6, 7 is dismissed with cost for today in the amount of $500.00 payable forthwith to the Applicant H. Janik.

2. Mr. Drotlef is free to refile a Motion to Change but before doing so he must comply with proof that he complied with this Cost Order of today by filing with his Motion to Change & supporting documents to an affidavit proving payment of this cost award.

[60] On March 29, 2016, in the related enforcement proceeding, Sullivan J. found the father in default of Jones J.'s Order of January 10, 2012. Sullivan J. ordered the father to pay $2,572 per month towards ongoing support and $2,572 per month towards arrears commencing April 1, 2016, failing which he would be incarcerated for 5 days for each missed payment. As set out above, the father has neither paid the ongoing support, let alone the arrears payments. I heard no evidence about what the FRO has done or not done in view of the default.

[61] On November 16, 2016, the father commenced this Motion to Change. This time, he returned to the Ontario Court of Justice at 311 Jarvis, Toronto, Ontario.

[62] This Court has made the following interim Orders in these current proceedings:

(a) On February 28, 2017, Murray J. made a disclosure Order and noted that the father would be retaining Mr. Arvanitis. She ordered the father to serve Mr. Arvanitis' report by May 4, 2017. She also ordered that an up to date statement of arrears from the FRO should be obtained;

(b) On May 18, 2017, Murray J. directed the father to order a transcript of the January 10, 2012 hearing before Jones J., by July 5, 2017;

(c) On July 14, 2017, Murray J. adjourned this matter to the assignment Court and ordered the father to provide documentary evidence of bank deposits of all of his commission cheques from January 10, 2012 forward at least 75 days before the trial. She directed the father to sign consents to banks so that the mother could get information herself. She also ordered the parties to file updated financial statements and made a number of other directions for the trial; and

(d) On September 27, 2017, Murray J. scheduled the trial in this matter before me.

[63] Although his productions in this proceeding are voluminous compared to what he produced previously, the father did not properly comply with Murray J.'s disclosure Order of July 14, 2017. On December 19, 2017, on the eve of this trial, the mother filed a 14B Motion dated November 20, 2017, asking that the Court "note the respondent in default of this Order". Murray J. directed the mother to raise this issue with me at the outset of the trial.

[64] On December 20, 2017, I heard the mother's 14B Motion. The motion was not properly constituted. Although noting someone in default of an Order is not a remedy, the mother was self-represented and so to ensure that the motion was fairly dealt with, I directed the mother to get advice from duty counsel as to what specific remedy she sought. The mother then indicated that she was prepared to proceed with the trial, but I dealt with the non-disclosure.

[65] I made a finding that the father had breached Murray J.'s July 14, 2017 Order. He did not provide proof of commission deposits from 2012 to 2017 as ordered. I found that as a result the mother was unable to make further inquiries of banks, which Murray J.'s Order contemplated she would be able to do.

[66] While the mother had been able to get some bank statements with some of the directions the father had signed, she had been unable to get the statements from January 2012 to August 2013. The mother wished to obtain those.

[67] The father orally explained to the Court that the mother's inability to obtain the statements for this period would have arisen because back then, he was still a joint account holder with Mrs. Drotlef. I ordered the father to obtain and produce the missing bank statements, and I made further directions concerning the conduct of the trial given the late productions. I also reserved costs of the motion.

[68] The trial then commenced in the afternoon of December 20, 2017. The father produced a brief of the missing productions in the middle of the trial.

[69] Now that I have heard the trial and considered the documentary evidence along with the viva voce evidence, I add that many of the documents that the father did produce in this case (i.e. many of the receipts) are not evidence of proper business expenses. Some of the father's productions were misleading to the mother and to the Court as to his income.

PART V: LAW, ANALYSIS AND ADDITIONAL FINDINGS OF FACT

A. Applicable Statutory Provisions

[70] This is a variation proceeding governed by section 37 of the FLA.

[71] The applicable sections of the FLA are:

Definitions

29 In this Part,

"dependant" means a person to whom another has an obligation to provide support under this Part;

Obligation of parent to support child

31 (1) Every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who,

(a) is a minor;

(b) is enrolled in a full-time program of education; or

(c) is unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents.

Purposes of order for support of child

33 (7) An order for the support of a child should,

(a) recognize that each parent has an obligation to provide support for the child;

(b) apportion the obligation according to the child support guidelines.

Powers of court

34 (1) In an application under section 33, the court may make an interim or final order,

(a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event;

(f) requiring that support be paid in respect of any period before the date of the order;

Application for variation

37 (1) An application to the court for variation of an order made or confirmed under this Part may be made by,

(a) a dependant or respondent named in the order;

(b) a parent of a dependant referred to in clause (a);

(c) the personal representative of a respondent referred to in clause (a); or

(d) an agency referred to in subsection 33 (3).

Powers of court: child support

(2.1) In the case of an order for support of a child, if the court is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available, the court may,

(a) discharge, vary or suspend a term of the order, prospectively or retroactively;

(b) relieve the respondent from the payment of part or all of the arrears or any interest due on them; and

(c) make any other order for the support of a child that the court could make on an application under section 33.

Application of child support guidelines

(2.2) A court making an order under subsection (2.1) shall do so in accordance with the child support guidelines.

[72] The applicable sections of the Guidelines are:

Objectives

1. The objectives of this Regulation are,

(a) to establish a fair standard of support for children that ensures that they benefit from the financial means of their parents and, in the case of divorce, from the financial means of both spouses after separation;

(b) to reduce conflict and tension between parents or spouses by making the calculation of child support more objective;

(c) to improve the efficiency of the legal process by giving courts, and parents and spouses, guidance in setting the levels of child support and encouraging settlement; and

(d) to ensure consistent treatment of parents or spouses and their children who are in similar circumstances.

Most current information

2(3) Where, for the purposes of the child support guidelines, any amount is determined on the basis of specified information, the most current information must be used.

Application of guidelines

2(4) In addition to their application to orders for support of a child, the child support guidelines apply, with such modifications as the circumstances require, to,

(a) interim orders under subsection 34 (1) of the Act or subsections 15.1 (2) and 19 (9) of the Divorce Act (Canada);

(b) orders varying a child support order; and

(c) orders referred to in subsection 19 (7) of the Divorce Act (Canada).

Presumptive rule

3. (1) Unless otherwise provided under these guidelines, the amount of an order for the support of a child for children under the age of majority is,

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent or spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.

Special or extraordinary expenses

7. (1) In an order for the support of a child, the court may, on the request of either parent or spouse or of an applicant under section 33 of the Act, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents or spouses and those of the child and to the spending pattern of the parents or spouses in respect of the child during cohabitation:

(a) child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Definition, "extraordinary expenses"

(1.1) For the purposes of clauses (1) (d) and (f),

"extraordinary expenses" means

(a) expenses that exceed those that the parent or spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that parent's or spouse's income and the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, or

(b) where clause (a) is not applicable, expenses that the court considers are extraordinary taking into account,

(i) the amount of the expense in relation to the income of the parent or spouse requesting the amount, including the amount that the parent or spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child,

(iv) the overall cost of the programs and activities, and

(v) any other similar factors that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents or spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.

Circumstances for variation

14. For the purposes of subsection 37 (2.2) of the Act and subsection 17 (4) of the Divorce Act (Canada), any one of the following constitutes a change of circumstances that gives rise to the making of a variation order:

15. In the case where the amount of child support includes a determination made in accordance with the table, any change in circumstances that would result in a different order for the support of a child or any provision thereof.

Determination of annual income

15. (1) Subject to subsection (2), a parent's or spouse's annual income is determined by the court in accordance with sections 16 to 20.

(2) Where both parents or spouses agree in writing on the annual income of a parent or spouse, the court may consider that amount to be the parent's or spouse's income for the purposes of these guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21.

Calculation of annual income

16. Subject to sections 17 to 20, a parent's or spouse's annual income is determined using the sources of income set out under the heading "Total income" in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III.

Pattern of income

17. (1) If the court is of the opinion that the determination of a parent's or spouse's annual income under section 16 would not be the fairest determination of that income, the court may have regard to the parent's or spouse's income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

Imputing income

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

(a) the parent or 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 parent or spouse;

(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;

Reasonableness of expenses

(2) For the purpose of clause (1) (g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).

Obligation of applicant

21. (1) A parent or spouse who is applying for an order for the support of a child and whose income information is necessary to determine the amount of the order must include with the application,

(a) a copy of every personal income tax return filed by the parent or spouse including any materials that were filed with the return for each of the three most recent taxation years;

(b) a copy of every notice of assessment and reassessment issued to the parent or spouse for each of the three most recent taxation years;

(c) where the parent or spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime, or, where such a statement is not provided by the employer, a letter from the parent's or spouse's employer setting out that information including the parent's or spouse's rate of annual salary or remuneration;

(d) where the parent or spouse is self-employed, for the three most recent taxation years,

(i) the financial statements of the parent's or spouse's business or professional practice, other than a partnership, and

(ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the parent or spouse does not deal at arm's length;

(h) in addition to any information that must be included under clauses (c) to (g), where the parent or spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information.

Obligation of respondent

(2) A parent or spouse who is served with an application for an order for the support of a child and whose income information is necessary to determine the amount of the order, must, within 30 days after the application is served if the parent or spouse resides in Canada or the United States or within 60 days if the parent or spouse resides elsewhere, or such other time limit as the court specifies, provide the court, as well as the other spouse, an applicant under section 33 of the Act or the order assignee with the documents referred to in subsection (1).

Special expenses or undue hardship

(3) Where, in the course of proceedings in respect of an application for an order for the support of a child, a parent or spouse requests an amount to cover expenses referred to in subsection 7 (1) or pleads undue hardship, the parent or spouse who would be receiving the amount of child support must, within 30 days after the amount is sought or undue hardship is pleaded if the parent or spouse resides in Canada or the United States or within 60 days if the parent or spouse resides elsewhere, or such other time limit as the court specifies, provide the court and the other parent or spouse with the documents referred to in subsection (1). O. Reg. 391/97, s. 21 (3).

Income over $150,000

(4) Where, in the course of proceedings in respect of an application for an order for the support of a child, it is established that the income of the parent or spouse who would be paying the amount of child support is greater than $150,000, the other parent or spouse must, within 30 days after the income is established to be greater than $150,000 if the other parent or spouse resides in Canada or the United States or within 60 days if the other parent or spouse resides elsewhere, or such other time limit as the court specifies, provide the court and the other parent or spouse with the documents referred to in subsection (1).

Failure to comply

22. (1) Where a parent or spouse fails to comply with section 21, the other spouse, an applicant under section 33 of the Act or an order assignee may apply,

(a) to have the application for an order for the support of a child set down for a hearing, or move for judgment; or

(b) for an order requiring the parent or spouse who failed to comply to provide the court, as well as the other parent or spouse or order assignee, as the case may be, with the required documents.

Costs of the proceedings

(2) Where a court makes an order under clause (1) (a) or (b), the court may award costs in favour of the other spouse, the applicant under section 33 of the Act or an order assignee up to an amount that fully compensates the other spouse, the applicant or order assignee for all costs incurred in the proceedings.

Adverse inference

23. Where the court proceeds to a hearing on the basis of an application under clause 22 (1) (a), the court may draw an adverse inference against the parent or spouse who failed to comply and impute income to that parent or spouse in such amount as it considers appropriate.

Failure to comply with court order

24. Where a parent or spouse fails to comply with an order issued on the basis of an application under clause 22 (1) (b), the court may,

(a) strike out any of the parent's or spouse's pleadings;

(b) make a contempt order against the parent or spouse;

(c) proceed to a hearing, in the course of which it may draw an adverse inference against the parent or spouse and impute income to that parent or spouse in such amount as it considers appropriate; and

(d) award costs in favour of the other spouse, an applicant under section 33 of the Act or an order assignee up to an amount that fully compensates the other spouse, the applicant or assignee for all costs incurred in the proceedings.

Annual obligation to provide income information

24.1 (1) Every person whose income or other financial information is used to determine the amount of an order for the support of a child shall, no later than 30 days after the anniversary of the date on which the order was made in every year in which the child is a child within the meaning of this Regulation, provide every party to the order with the following, unless the parties have agreed otherwise:

1. For the most recent taxation year, a copy of the person's,

i. personal income tax return, including any materials that were filed with the return, and

ii. notice of assessment and, if any, notice of reassessment.

2. As applicable, any current information in writing about,

i. the status and amount of any expenses included in the order pursuant to subsection 7 (1), and

ii. any loan, scholarship or bursaries the child has received or will receive in the coming year that affect or will affect the expenses referred to in subparagraph i.

Notices of assessment

(2) If the person has not received his or her notice of assessment or notice of reassessment for the most recent taxation year by the date referred to in subsection (1), the person shall provide every party to the order with a copy of the notice as soon as possible after the person receives the notice.

Change in address

(3) If the address at which a party receives documents changes, the party shall, at least 30 days before the next anniversary of the date on which the order was made, give written notice of his or her updated address information to every person required to provide documents and information under subsection (1).

Continuing obligation to provide income information

25. (1) Every parent or spouse against whom an order for the support of a child has been made must, on the written request of the other spouse or the person or agency entitled to payment under the order not more than once a year after the making of the order and as long as the child is a child within the meaning of this Regulation, provide that other spouse, or the person or agency entitled to payment under the order, with,

(a) the documents referred to in subsection 21 (1) for any of the three most recent taxation years for which the parent or spouse has not previously provided the documents;

(b) as applicable, any current information in writing about,

(i) the status and amount of any expenses included in the order pursuant to subsection 7 (1), and

(ii) any loan, scholarship or bursaries the child has received that affect the expenses referred to in subclause (i); and

(c) as applicable, any current information, in writing, about the circumstances relied on by the court in a determination of undue hardship.

Obligation of receiving parent or spouse

(3) Where the income information of the parent or spouse in favour of whom an order for the support of a child is made is used to determine the amount of the order, the parent or spouse must, not more than once a year after the making of the order and as long as the child is a child within the meaning of this Regulation, on the written request of the other parent or spouse, provide the other parent or spouse with the documents and information referred to in subsection (1).

Information requests

(4) Where a parent or spouse requests information from the other parent or spouse under any of subsections (1) to (3) and the income information of the requesting parent or spouse is used to determine the amount of the order for the support of a child, the requesting parent or spouse must include the documents and information referred to in subsection (1) with the request.

Time limit

(5) A parent or spouse who receives a request made under any of subsections (1) to (3) must provide the required documents within 30 days after the request's receipt if the parent or spouse resides in Canada or the United States and within 60 days after the request's receipt if the parent or spouse resides elsewhere.

Deemed receipt

(6) A request made under any of subsections (1) to (3) is deemed to have been received 10 days after it is sent.

Failure to comply

(7) A court may, on application by either spouse, an applicant under section 33 of the Act or an order assignee, where the parent or spouse has failed to comply with any of subsections (1) to (3),

(a) consider the parent or spouse to be in contempt of court and award costs in favour of the applicant up to an amount that fully compensates the applicant for all costs incurred in the proceedings; or

(b) make an order requiring the parent or spouse to provide the required documents to the court, as well as to the spouse, order assignee or applicant under section 33 of the Act, as the case may be.

B. The Test to Change Child Support

[73] This is not a Motion to set aside Jones J.'s Order; it is a Motion to Change the Order. As Justice Pazaratz describes this in Trang v. Trang, 2013 ONSC 1980, this difference is significant. At ¶ 42-60 Trang v. Trang, Pazaratz J. held whether there has been a sufficient change in circumstances to change child support in a case where income has been imputed is not as simple as comparing the father's income then to now and deciding when the payor's income changed, and why.

[74] Rather, the Court must first consider whether the support order was based on the payor's declared income or whether income was imputed. If the support order was based on declared income, then changes in declared income in subsequent years are more persuasive. But if the order was based on imputed income then the Court must ask:

(a) Why income had to be imputed in the first place?

(b) Have those circumstances changed?

(c) Is it still necessary to impute to achieve a fair result?

(d) How did the Court quantify the imputed income and are those calculations still applicable?

[75] As Pazaratz J. held at ¶ 51 of Trang v. Trang, the imputation of income is a determination of fact. "It's not a provisional order awaiting better disclosure, or further review. It's a determination that the court had to calculate a number, because it didn't feel it was appropriate to rely on – or wait for – representations from the payor."

[76] A payor who argues that imputed income is no longer appropriate must go beyond his or her "declared income". He or she must address both why income had to be imputed in the first place and establish that it is either no longer appropriate to impute income as representations as to income should now be accepted; or if income should still be imputed now, it should be done at a different amount: see ¶ 52 of Trang v. Trang.

[77] The onus falls on the payor, not the recipient, to establish that there should be a change in the way his income is to be calculated: see ¶ 55 of Trang v. Trang.

[78] And finally, if the payor fails to appeal or move to set aside the Order, then he "must face the presumption that the original order was correct – and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court": see ¶ 60 of Trang v. Trang.

[79] This analysis in Trang v. Trang has been adopted by an appellate Court in Ontario: see Ruffolo v. David, 2016 ONSC 754 (Div. Ct.) (and see also Gray v. Rizzi, 2016 ONCA 152 in which the Court of Appeal cites Trang with approval, albeit on another point). (It has also been adopted by at least one other provincial appellate Court: see Aalbers v. Aalbers, 2017 SKCA 43.)

C. The Father's Explanations Respecting Why Income Had to Be Imputed to Him in the First Place

[80] The father explains that income was imputed to him by Jones J. because he did not produce documentation that he was required to provide within the time frame that was imposed. He says this was not due to his "ill will" or because of his "refusal to abide", but simply because he could not provide the disclosure.

[81] He went on to say:

(a) that his estranged spouse was his bookkeeper and it was difficult to get documents from her;

(b) that he was then going through a difficult time in his life, both with litigation and financial misadventures. He declared bankruptcy and suffered from depression;

(c) in the original proceedings, he had no idea as to what his obligations were in terms of productions. Back then, the mother then had a very senior lawyer who ably pointed out the deficiencies in his disclosure. He said he tried to provide the documentation and in fact he had a full set of documents by January 10, 2012, but Justice Jones said it was too late; and

(d) when he tried to bring a Motion to Change (referring to the Motion to Change before Sullivan J.), there were "failures in documentary production" and that is what caused that motion to be dismissed.

[82] The father elaborated about each of these points during the trial.

[83] I do not accept any of his explanations as justifications for failure to disclose. I find that the father chose not to cooperate and not to participate properly in the Court processes that have transpired. I will explain why I make this finding with reference to each of the father's explanations.

(1) The Father's Failure to Provide Disclosure was His Former Spouse's and/or His Former Accountant's Fault

[84] The father testified that it was Mrs. Drotlef who was responsible for dealing with the accountant, when they were an intact family. He testified that she had his financial documents as a result and that he had difficulty getting them from her. Again, he said he was finally able to get the documents from her for the January 10, 2012 uncontested trial date, but by then it was too late. He said that the mother's counsel then essentially 'cherry-picked' from his returns, and referred Jones J. to the highest income earning years.

[85] I do not accept this evidence. The father did not call Mrs. Drotlef to testify and essentially attempted to impeach her, without affording the Court the opportunity to hear from her. Meanwhile, the father offered very little evidence of what steps he took to get the documents from his so-called "estranged wife", assuming that she had the documents in the first place, or from another source. For example, he provided no evidence as to whether or why he didn't just telephone the CRA's 1-800 number to order his historic tax returns, nor did he explain whether or why he couldn't get the documents, including the bankruptcy documents, from the bankruptcy trustee.

[86] Again, the transcript of the proceedings before Jones J. does not reveal that the father had the tax returns by January 10, 2012. Nor did the mother's former counsel's 'cherry pick' from those returns in the submissions to Jones J. The mother relied on the attachments to her 23C Affidavit, including the affidavit of Mr. Webb, not the father's tax returns, and pointed the Court to historical income over a number of years.

[87] Moreover, when he was testifying about his health, which I deal with below, the father explained that he didn't even separate from Mrs. Drotlef until 2013. I note that in his submissions respecting the disclosure motion I heard at the outset of the trial, the father explained his non-compliance respecting his failure to produce bank statements for 2012 and 2013 by saying he was still a joint account holder with Mrs. Drotlef as late as 2013. At no point during the trial did he elaborate or explain how he and Mrs. Drotlef were already "estranged" by 2011 and early 2012 when he said she was allegedly withholding documents.

[88] The father testified that he went bankrupt in 2008. This he said, in tandem with the fact that Mrs. Drotlef was the one who dealt with the accountant, adversely impacted his ability to provide disclosure in 2011 and early 2012. He accused his former accountant (whom he did not call to testify either) of fraud. He also told the Court that the police had apparently descended on the accountant's office and boxed up files at some point.

[89] He said that he and Mrs. Drotlef did not pay taxes, and this was either the accountant's fault for providing deficient advice, or Mrs. Drotlef's fault for cooperating with the fraudulent accountant. He accepts no responsibility for the bankruptcy.

[90] The father did not specifically explain how this impacted his ability to produce disclosure. In any event, when he was challenged in cross-examination about this, he testified that he did not think he needed to respond to efforts by the CRA to contact him about his delinquency because he relied on the fraudulent accountant for advice. He also said he was an immigrant from Poland who didn't speak English. He relied on similar explanations when explaining that he didn't think he needed to pay taxes.

[91] These explanations are not believable. I do not accept them as justifications for his non-compliance.

(2) The Father's Said He Suffered From Depression

[92] In terms of the medical evidence, the father testified that his best years in real estate were between 2003 and 2008. He said that he and Mrs. Drotlef earned total revenue between $170,000 and $280,000.00 during those years. Back then, he said he spent between $5,000 and $10,000 per month in advertising. He was actively involved in advertising in the Polish Community, a community of which he is a member.

[93] Then, in 2008 he went bankrupt. Then, his marriage fell apart and he lost his house. He separated from Mrs. Drotlef, but this was in 2013, after Jones J.'s Order. He now lives in a basement apartment.

[94] Although he was having an affair with Ms. Janik and had children with her at around the same time he was still in his marriage with Mrs. Drotlef and had children with her too, he testified that he had a "family oriented mentality" and the loss of his family, his business and his house, impacted him profoundly.

[95] He was afraid to go to a Polish Doctor so he went to see a doctor in Oakville, Dr. Mian.

[96] The father provided a short report from Dr. Mian dated December 11, 2017. The father chose not to call Dr. Mian to testify. According to the report, the father has been Dr. Mian's patient since September 11, 2013. He started seeing Dr. Mian after Jones J.'s Order.

[97] The report dated December 11, 2017 states that the father had been "previously diagnosed with anxiety and major depression and continues to suffer from this". It states that he had been seen by a psychiatrist in the past. It states that he previously took Cipralex and Ativan for a few months but then stopped. Finally, it states that the father's depression is now "stable".

[98] The father filed an earlier letter from Dr. Mian dated February 8, 2016. Back then, Dr. Mian reported that the father has suffered from depression for over 3 years. Apparently back in 2016, his condition had worsened and Dr. Mian prescribed Cipralex and Attivan.

[99] The father's own evidence is that he has suffered from "eye problems" since he was 22 years old. This has led to severe headaches. He testified he was diagnosed with depression in 2013 (after Jones J.'s Order). He testified that he stopped taking the medication because of the side effects. He complained that currently he cannot take the medication, that he suffers from "horrible" headaches, and that he recently went to the emergency department last year because he had fallen on the floor. He did not provide medical evidence to explain this incident of falling, but he said, "I don't want to look pathetic but I'm glad I'm still alive".

[100] He testified that he now feels less stress that he has a lawyer helping him.

[101] According to the father, the February 8, 2016 letter of Dr. Mian is the letter that Sullivan J. referred to in the March 21, 2016 Endorsement. The father said he brought this letter to Court, but Sullivan J. "ignored" it. The Endorsement reveals that Sullivan J. did not "ignore" the letter; rather he was not persuaded by it in the circumstances.

[102] I have considered both letters/reports and the father's own explanation as to his health. This evidence is insufficient evidence of changed circumstances in my view. It also provides an insufficient explanation for the father's failure to disclose prior to the January 10, 2012 Order, prior to Sullivan J.'s March 21, 2016 dismissal of the first Motion to Change, and prior to the trial in this case for the following reasons.

[103] First, the evidence post-dates Jones J.'s Order, and it was only brought to Sullivan J.'s attention as an after-thought in an attempt to delay the March 21, 2016 hearing.

[104] Second, it does not place the father's history of depression into context to explain how the depression impacted his ability to provide disclosure.

[105] Third, it does not explain more generally how the health problems from which the father has suffered impacted his ability to cope with the litigation or to earn an income. I note that the father had several high commission earning years during the same time frame he said he suffered from issues with his eyes and headaches.

(3) The Father Claims to Have Not Understood His Disclosure Obligations and He Said He Received Incorrect Advice and Direction

[106] I do not accept that the father "had no idea as to what his obligations were in terms of productions" prior to the January 10, 2012 uncontested trial as the father said, or for that matter, thereafter. I note that that original disclosure order that Murray J. made in 2011, prior to the uncontested trial, was not onerous. It required him merely to provide tax returns and proof of the state of affairs in his bankruptcy proceedings.

[107] The father had 5 months and 18 days from the time he was served on June 1, 2011 to the ultimate deadline of November 18, 2011 by which Murray J. said he had to bring a motion to re-open the pleadings, to provide this disclosure. Even then, as things unfolded, he had a further 53 days from November 18, 2011 to January 10, 2012, during which time he could have put this disclosure before the Court.

[108] He then had over 4 years to organize his disclosure before the first Motion to Change was ultimately dismissed by Sullivan J. Even if he didn't know what to do before 2012, which I do not accept, by the time that he started the first Motion to Change, he ought to have.

[109] In that Motion to Change in Brampton, he would have had at least several months to provide the disclosure that was ordered, before Sullivan J. eventually dismissed the Motion to Change. Even then, the Court still gave him leave to re-file this Motion to Change, which he decided to do at 311 Jarvis. And yet, outstanding disclosure remained an issue in this case, at the 11th hour, and some of the disclosure he did provide was misleading and not helpful.

[110] I was not provided with the disclosure orders made by the Court in Brampton in September and December, 2015. However, there was nothing ambiguous in the disclosure Endorsements that pre-dated Jones J.'s 2012 Order, or in those that Murray J. made in the current Motion to Change prior to this trial. And regarding the Brampton disclosure Orders made in 2015, the father admitted in cross-examination that he had at least two case conferences in the Brampton proceeding, and that Sullivan J. had "spelled out" for him what was required.

[111] Nevertheless, the father testified the following (none of which I accept):

(a) He has tried to comply. He has a wall in his apartment where he charts or tracks the disclosure that is due. (Yet at least at the time of Jones J.'s January 10 2012 Order, the father was not then living in this apartment);

(b) Again, by the date of the 2012 uncontested trial, he had all of his tax returns and the mother's former counsel selectively referred to them. (Yet as I have said above, the transcript from the 2012 uncontested trial does not reveal this);

(c) He thought that he had to bring all of the disclosure at the end of the case. (I do not accept this given the clear timelines that were imposed in the disclosure orders and given his admission about the conduct of the Brampton proceedings);

(d) He "walked in" all of the disclosure that was required in Brampton, but Sullivan J. became "upset". (I do not accept that the father tried to "walk in" disclosure. The Endorsement of March 21, 2016 only refers to a doctor's letter, brought for the purposes of seeking an adjournment); and

(e) He blamed filing clerks at the Court and lawyers for not advising him properly as to the process respecting disclosure.

(4) Findings Respecting Why Income Had to Be Imputed to the Father in the First Place

[112] I find that the father deliberately chose not to cooperate and not to participate properly in the Court processes. As a result, first, Justice Murray noted him in default and gave him another chance. Then Justice Jones drew an adverse inference against him when he didn't avail himself of that chance. Then Justice Sullivan dismissed his Motion to Change when he didn't comply in the Brampton proceeding, but gave him yet another chance.

[113] The father bears responsibility for the Orders that were made in this case. But during this trial, he took little to no responsibility for his actions.

[114] Nevertheless, despite these findings, the issue remains whether Jones J.'s Order should be varied on account of changed circumstances. I must decide whether those circumstances have changed such that it is still necessary to impute an income, and if so, whether the Court should use the same calculations that Jones J. used, or a different calculation. In this case, there is a further issue to be determined, namely even if the Court finds different calculations to be appropriate after 2012, whether the Court should grant the father relief as far back as he asks, or retroactively to some other date at all, given this history and his conduct. If I were to vary the Order back to the outset and unravel Jones J.'s Order entirely, this would be tantamount to condoning the father's conduct. There must be consequences for the actions he has taken in the litigation.

D. The Father's Alleged Changes In Circumstances

[115] The father provided a number of explanations as to what the changed circumstances are that justify changing the Order, four of which I reject and two of which I am prepared to accept.

(1) The Father's Bankruptcy

[116] One such alleged change is his bankruptcy. For the purposes of assessing whether there has been a requisite change in circumstances, the father's bankruptcy predated Jones J.'s Order. The father tendered almost no evidence as to the current state of his bankruptcy or next steps. In any event, a bankruptcy does not extinguish support arrears.

(2) The Father's Health

[117] Another is ill health. Yet as I have set out above, the medical evidence that the father tendered is insufficient.

(3) The Father's Decreased Advertising

[118] Again, the father testified that he used to advertise a lot, including sponsoring events in the Polish community. He testifies that he no longer does either because he cannot afford to do so.

[119] In tandem with this evidence, the father also suggested there is increased competition. He testified that there are now more than 50,000 agents. He went on to say that unlike him, other agents have domestic education and are fluent in English.

[120] He said that he has lost 90 to 95% of his clients. He heard rumours in the community that he was "not popular anymore". He said that his Polish clients were "European Catholic" and once they heard he was divorced, they "erased" his phone number.

[121] The father takes no responsibility for his decreased advertising. For the past two years, he hasn't paid the Polish business directory, in which he used to advertise. When asked whether he still does any sponsorships, he flippantly said, "I'm looking for a sponsor myself".

[122] The father's evidence about increased competition and the reason for his loss of clients is anecdotal. While there may be 50,000 agents now, I do not know how many agents there were during the father's peak earning years.

[123] His foreign education and language skills were non-issues in the past. I do not know what has changed in this respect. Moreover, the father's education as a real estate agent was acquired here.

[124] The Court cannot rely on alleged rumours in the community relating to the divorce as to the reason for the father's loss of clients.

(4) The Father Does Not Have A Driver's License

[125] The father lost his drivers' license in July of 2014. He testified that he cannot be a real estate agent without a car. He testified that, in the absence of having a license, he relies on his clients to drive him or he has to hire someone to drive him.

[126] The evidence about the father's use of a vehicle is problematic. The father has a car in his driveway. It is the same car that he used to own, only now it has a different set of license plates. In cross-examination, the father testified that he transferred ownership of this car to a company called MegaCity. MegaCity is now the owner of his car apparently. He said that he pays MegaCity to drive him. It costs him about $3,000 per year to use this service. He did not supply receipts to prove this for each year since Jones J.'s Order.

[127] The evidence also revealed:

(a) MegaCity is a wedding and event planning business, not a transportation service;

(b) Megacity is owned by Chris Jakubowski, who is a friend of the father's. The father did not call Mr. Jakubowski to testify;

(c) The father gave no credible explanation about the circumstances surrounding the transfer of his car to MegaCity. He did not tell the Court whether there was any consideration for the transfer, nor did he provide an understandable explanation as to the apparent agreement for transportation services with MegaCity, nor did he explain whether the car will be transferred back to him; and

(d) The father testified that he pays for gas when MegaCity drives him. But sometimes he pays with Tim Horton's, Winners, Marshalls, Home Depot or Rona Gift Cards. This evidence makes no sense.

[128] The mother invited me to find that the father is actually driving himself. She testified that she had seen the father's car parked at the real estate brokerage, in addition to in his driveway. In his closing submissions, the father's counsel objected to my making such a finding. He argued that if I were to find that he has been driving without a license, this would be a violation of the rule in Browne v. Dunn. He said that the mother did not specifically put to the father the proposition that he was driving without a license.

[129] In my view, the mother asked a number of questions about the car, sufficient to suggest that the transaction with MegaCity is suspicious and that the father may be driving without a license. If he is, he should not be. But I need not make this finding. I say this for the following reasons.

[130] If it is true that the father is not driving and he relies on others to drive him, then I accept that not having ready access to a car is an impediment to a real estate agent. But whether or not the father is illegally driving is beside the point to begin with. The loss of the father's license is his own fault for not paying support. If he could not afford the amount of support that Jones J. ordered, then he ought to have participated in the first round of the proceedings and taken a position to the contrary. Or he ought to have promptly moved to set aside Jones J.'s Order, or properly pursued the first Motion to Change promptly, or appealed.

[131] The father testified that he does not have the "tools" to earn an income. He said that if he gets his "tools" back (referring to his car), then he can make more money. He said he would be able to get 3 listings a month and would be able to earn $200,000 per year if he had a car. I was told that if I make an Order fixing arrears and order a repayment plan, the FRO may reinstate the father's license. This will result in increased income and more support in the future.

[132] While I do not accept that the father's troubles with his license are a requisite change in circumstances, I do rely on his evidence about his need for a car and accept that is related to his future ability to pay the arrears I am ordering. I address this below.

(5) The Breakdown of the Father's Marriage to Mrs. Drotlef

[133] I am prepared to accept that the father's separation from Mrs. Drotlef is a change in circumstances since Jones J.'s Order. Although he tried to blame her for his tax problems, he also credited Mrs. Drotlef for his success to a large degree.

[134] The father's evidence was that Mrs. Drotlef was an integral part of the real estate business. The father admitted that Mrs. Drotlef searched for houses, was responsible for writing the content of advertising and for arranging for advertising, was the bookkeeper, handled phone calls and helped with open houses. I accept that the father's separation from Mrs. Drotlef was not only the loss of his spouse but also the loss of his business partner, and this is a change in circumstances.

(6) The Father's Income after Jones J.'s Order

[135] I also accept that the fact that the father has not earned $200,000 in the years since Jones J.'s Order is a change in circumstances within the meaning of the Guidelines. In making this finding, I considered whether such a finding is contrary to the test in Trang v. Trang. I have concluded that it is open to me to make this finding within the Trang test.

[136] In Ruffolo v. David, the father had testified at the initial trial, and the trial judge made a finding that the father had not revealed all of his income. The father appealed the order made at the first trial, unsuccessfully.

[137] Then there was a Motion to Change. The judge hearing the motion retroactively varied the initial support Order and rescinded arrears. Like in the case before me, in the Motion to Change in Ruffolo, the father testified and produced an accountant's report.

[138] There was an appeal of the second Order in Ruffolo. On that appeal, the Divisional Court reversed the second judge's decision for not following the test in Trang. The Divisional Court referred to what happened in the Court below as an "optics problem" (in that it resembled a collateral attack on the first, unsuccessful appeal). More importantly, neither the payor nor the expert in the second proceeding addressed the factual circumstances that led the first trial judge to reject the father's evidence initially. The expert report was based entirely on self-reporting from the father, which was tainted with the same issues of credibility. The expert had not even reviewed the original judge's decision.

[139] This case is different from Ruffolo in that the father did not testify before Jones J. The income she imputed was based on insufficient financial information from the father, given his failure to cooperate and participate. It was not based on an adverse credibility finding.

[140] Now, I have more disclosure from the father. Later in these reasons, I determine the father's income.

[141] While I find it is open to me to determine the father's income and compare that to which Jones J. imputed without violating the test in Trang v. Trang, this approach can only go so far. The Court should still not render the father's failure to cooperate and to properly participate in the prior proceedings meaningless.

E. The Father's Income

[142] The approach to the determination of income is set out in sections 15 to 20 of the Guidelines. See also Mason v. Mason, 2016 ONCA 725 at ¶ 53-61.

[143] The father bears the onus of proving his income. Where he seeks to deduct expenses from gross income, the father also bears the onus of demonstrating that the deduction should be taken into account in the determination of his income. See Wilson v. Wilson, 2011 ONCJ 103 at ¶ 22.

[144] The father's conduct regarding his disclosure is relevant to the determination of his income. In Reyes v. Rollo (2001), 24 R.F.L. 5th 120 (S.C.J.) at ¶ 44, Justice Francis Kiteley talked about the level of disclosure necessary to discharge that onus. She said:

It is inherent in the circumstances of those who are self-employed, 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.

[145] The father has not fully discharged his onus to prove his income and his expenses in this case.

[146] As set out above, I qualified Mr. Arvanitis as an expert in the determination of income pursuant to the Child Support Guidelines. Mr. Arvanitis holds a Bachelor of Commerce degree from McMaster University. He is a member of the American Society of Appraisers, which I was told is the US equivalent of the Canadian Association of Chartered Business Valuators. He is a business valuator who holds a senior appraiser designation. He regularly takes the required standards course to maintain his designation. He has done a number of income valuations and has been qualified as an expert to testify in Court previously. He signed the Acknowledgement of Expert's Duty Form and testified that he understands his duties to the Court.

[147] Mr. Arvanitis testified that he followed the approach to the determination of income as set out in the Federal Child Support Guidelines. He reviewed a number of documents provided by the father, including the father's "tax worksheets" from the brokerage and the father's income tax returns. The tax worksheets set out the commission income the father earned and certain other information.

[148] Mr. Arvanitis explained that the father incorrectly deducted HST from his commission income, as HST was collected in addition to his commission income. He therefore made an upward adjustment to arrive at the total commission income the father received in each year from 2012 to present. That upward adjustment was appropriate.

[149] The father's commission reports include deductions for the brokerage's split of the commission. The brokerage then charged the father a number of expenses against his commissions in the ordinary course of business. These include various office charges, like photocopies. Appropriately, Mr. Arvanitis allowed these deductions. The father has proven these deductions are legitimate business expenses.

[150] However, the statements show several deductions for garnishments. The brokerage held back money to pay support. Mr. Arvanitis appropriately added back these garnishments to income in each year from 2012 through 2017.

[151] Mr. Arvanitis then added back 100% of the other expenses that the father deducted from income on his Statements of Business Activities for 2012 through 2016. Pursuant to section 19(1)(g) of the Guidelines, Mr. Arvanitis then took an 'all or nothing' approach and decided whether to allow various expenses or not. In other words, he either allowed or disallowed the expenses that the father had deducted from his tax returns entirely.

[152] For 2017, Mr. Arvanitis only had evidence of the father's income for the first 4 months of the year. By the time of trial, a report of the father's commissions in 2017 was available. He did not have evidence of the expenses for 2017. So he suggested that the Court should just deduct between 20 to 30% for additional expenses. 20%, he said, would be "ultra conservative".

[153] As set out above, Mr. Arvanitis was not retained to conduct a "forensic" accounting, as it was "cost prohibitive". He testified that he assumed the father accurately reported the total amounts of each of the expenses in the various categories of the tax return. He then relied on conversations with the father as to whether to allow or to disallow these expenses. He testified that he applied a "smell test" to determine what expenses to allow or disallow.

[154] For example, he testified that he added back all of the salaries expense in 2012 because this represented the father income splitting with Mrs. Drotlef and perhaps the mother in this case.

[155] In the result, Mr. Arvanitis testified that he "dramatically decreased" the expenses that the father deducted on his tax returns. Apparently the father was unhappy about this. Yet the father still relies on Mr. Arvanitis' report. The father did not provide any evidence to suggest that the expenses that Mr. Arvanitis disallowed ought not have been.

[156] Mr. Arvanitis allowed 100% of the expenses claimed for advertising, meals and entertainment, insurance, interest, fees and dues, supplies, legal expenses, travel, telephone and utilities, delivery, freight and expenses, vehicle expenses, promotion and gifts, "gifts for kids", bank fees, and parking and tools and he disallowed the father's other expenses. His analysis reveals the following:

	2012	2013	2014	2015	2016	2017 (Jan.1-Apr.25 only)
Total Commission after HST improperly deducted is added back	$73,041.75	$107,787.00	$36,052.50	$41,800.85	$66,449.40	$61,449.87
"Maximum Guideline Income" (Net Income after expenses deducted)	$43,716.99	$68,556.89	$24,274.63	$25,752.37	$31,433.15	$57,818.62

[157] However, as I have said above, the Court has difficulty relying on the information that the father gave to Mr. Arvanitis about his expenses based on the evidence presented at trial.

[158] Again, it is the father's onus to prove that expenses should be deducted from his gross income, and to provide documentation that can be understood in a user-friendly way, otherwise he risks having adverse inferences drawn. Pursuant to section 19(1)(g) of the Guidelines, the Court may impute an amount if it finds that the father has unreasonably deducted expenses from income. Section 19(2) provides that the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act (Canada).

[159] According to this approach, I would have added back additional expenses pursuant to section 19(1)(g). To begin, the father's own evidence of his expenses was suspect. He testified that he purchased things like gift cards, for example, Tim Horton's Gift Cards, for clients' birthdays, without specifying which clients. By way of a further example, while he is no longer able to afford to advertise, he testified that he does hire a student to distribute flyers to advertise his services. He testified that the student, whose name he could not remember initially, distributes his flyers about 4 times per year for 2 hours each time.

[160] In the documentary evidence was a letter from Jeffrey Greaves, which is hearsay, purporting to be a receipt for payment of $7,585 for flyer distribution services, allegedly paid in cash. When shown the receipt, the father's memory was refreshed and he testified that this was the student he hired to distribute flyers. The father's evidence is that this invoice also included the cost of photocopies, but the father did not provide a breakdown.

[161] The amount the father says he paid Mr. Greaves is excessive given the amount of work that the father testified that Mr. Greaves did for him. It is not reasonable that the father paid $7,585 for 8 hours of work, even if it included the cost of photocopies.

[162] Yet Mr. Arvanitis allowed this expense.

[163] The mother undertook her own analysis of the father's receipts. She testified that 55 pages of the father's receipts were either illegible, duplicates, or had vital information such as a date missing. She drew the Court's attention the fact that the father failed to provide receipts for various expenses, such as advertising. She added up the other receipts to show that the total value of the expenses for which he produced receipts was less than the total value of expenses that he deducted from his tax returns in many cases. She drew to the Court's attention that the father did not identify which receipts related to which clients.

[164] She also provided the Court with a list of what she referred to as "questionable receipts". I provide a chart of the receipts that the mother put to the father in cross-examination and his responses:

Nature of Receipt	Father's Explanation
Senior and Child's Admission to Toronto Zoo	This was a client Gift. The father said he went to the Zoo with a client and the client's child.
Mastermind Hair Glow Doll	This was a gift for person driving the father.
Admission to "Bird Kingdom" in Niagara Falls	This was for Ana Piecha. Ms. Piecha is referral source. He says he took Ms. Piecha to Bird Kingdom.
"Gumball Necklace" from J-Crew	The father could not remember.
Fleece Blanket from Bed, Bath & Beyond	This was a client gift but the father could not remember the name of the client.
Construction Services	This was purchased for Chris Jakubowski. Mr. Jakubowski is the father's friend who is also the owner of MegaCity, which the father says now owns his car.
Balerina Bag	This is a gift for a client named Charmaine, Jessie or Olga, living in High Park. He could not remember who.
Boys Clothing	The father testified that sometimes he has a very poor client or a client with sick children. He tries to help people.
Kitchen Bakeware	The father did not itemize the names of clients on receipts. He testified that he is "not good" with receipts.
Toilet Paper	Initially, the father testified that one client said he or she had moved and didn't have toilet paper. Then he changed his evidence and said he recommends clients who are painting should use toilet paper as part of their painting supplies.
Nerf Ball from Canadian Tire	The father said this was a Christmas gift for a client.
Bamboo Pillow	The father says he purchased this for Chris Jakubowski's wife.
Housewares	The father could not remember but added that every receipt is related to business.
Receipt from Indigo	The father said that this was a gift for a client's child.
Computer Gaming Chairs and Speakers	The father testified that he bought this for business use in his office because the chair is comfortable.
Staples & Best Buy Receipts	The father claimed he purchased a lap top for Ana Piecha because she had referred him a client for $4 million.
Laundry Soap	The father testified that he had a client in High Park and told the client of the advantage of European laundry soap. He sourced the soap at 50% off and brought the client the soap as a gift.
Dr. Oetker Ristorante Frozen Pizza	The father said he recommended this pizza to a client and then brought the client frozen pizza.

[165] Even if the CRA allowed these expenses, that is not determinative as section 19(2) of the Guidelines states. That said, I doubt that these deductions would pass CRA muster in the event of an audit.

[166] I find the father attempted to mislead the mother and the Court respecting his expenses.

[167] The Court does not intend to comb through the many receipts and guess which are legitimate and which are not. I find these expenses are not proper deductions in light of the evidence I heard. The father has failed to persuade the Court that his deductions for advertising, meals and entertainment, promotion and gifts or gifts for kids are legitimate. These are the expenses for which there was either insufficient evidence or no evidence as to the nature of the expense, or they are expenses where there may have been some legitimate expenses buried within these categories, but the father's evidence as to the category was so tainted that it impossible to determine. Based on the father's disclosure of receipts for expenses coupled with his lack of credibility, the Court would add these expenses back.

[168] But by the same token, I do not find it to be appropriate to disallow all of the father's expenses. Although the father did not supply receipts for many of the items he has deducted and I have found his evidence to be generally not credible, obviously some deduction for expenses is inherent in running a business. But even in the absence of proper documentation, I have reviewed the quantum of the deductions in the other categories that Mr. Arvanitis allowed, and I find those to be necessary and reasonable deductions related to earning income.

[169] This includes the transportation/car expenses. I would allow those expenses even in the face of the problematic evidence about the father's vehicle and what is actually happening in that respect. I accept that transportation is a necessary expense for self-employment as a real estate agent. I find the quantum of father's vehicle expenses that he deducted from his tax returns to be reasonable.

[170] Mr. Arvanitis testified that even if the Court disallows all of the father's expenses, the father's maximum income could be no more than the total commissions he received. I disagree. Mr. Arvanitis did not apply a tax gross up for expenses that he disallowed. And I would have disallowed additional expenses than those Mr. Arvanitis disallowed, which should also be grossed up for tax.

[171] At ¶ 10-13 of Orser v. Grant, 2000 CarswellOnt 1354 (S.C.J.), Benotto J. (as she then was) referred to one of the Guidelines' objectives, to ensure "consistent treatment" of those in "similar circumstances", in deciding to gross up improper deductions for the tax savings before applying the table amount of support. In Orser v. Grant, Benotto J. had been asked to use a 36% average tax rate and found that to be reasonable.

[172] At ¶ 58-62 of Ayesh v. Zeidan, 2017 ONSC 7407, Price J. reviewed cases in which some judges have applied a gross up in the absence of submissions or evidence about the appropriate amount of the gross up, and where others have declined to do so. In the result in Ayesh v. Zeidan, Price J. declined to apply a gross up because the payor's income was in flux. This was a temporary decision on a motion, however. Price J. left the issue to the trial judge.

[173] During his evidence, I asked Mr. Arvanitis whether he had applied a gross up on the expenses improperly deducted, to account for the tax savings in each of the years between 2012 and 2016. He did not. Then in closing submissions, I then questioned the parties as to whether there should be a gross up for tax. But neither party provided me with correct calculations as to the father's income, let alone the tax gross up.

[174] The weight of the authorities supports a gross up for tax. In this case, in the absence of submissions or calculations, I have used the DivorceMate software and applied a tax gross up only on the expenses that were unreasonably deducted. I used the tax rates for each particular year in which expenses were unreasonably deducted. This is the approach taken in Hudson v. Simoni, 2017 CarswellNfld 51 (S.C.T.D.) at ¶ 273-274. I did so to give effect to the objectives of the Guidelines.

[175] The analysis with the tax gross up raises the father's adjusted net income for 2013 slightly above the total commission he earned in that year. In all other years, the father's adjusted net income is less than his gross income.

[176] The breakdown of the Court's calculations respecting the father's income is as follows:

	2012	2013	2014	2015	2016
Total Commission after HST improperly deducted is added back	$73,041.75	$107,787.00	$36,052.50	$41,800.85	$66,449.40
"Maximum Guideline Income" per Income Report (Net Income after expenses deducted)	$43,716.99	$68,556.89	$24,274.63	$25,752.37	$31,433.15
Additional Expenses Added Back by the Court	$5,732.72	$12,858.54	$1,967.69	$1,320.94	$11,322.01
Father's Adjusted Net Income Before Tax Gross Up	$49,449.71	$81,415.43	$26,242.32	$27,073.31	$42,755.16
Tax Gross Up on Expenses Unreasonably Deducted	$10,204.00	$26,576.00	$4,226.00	$4,208.00	$3,775.00
Father's Adjusted Income After Gross Up	$59,653.71	$107,991.43	$30,468.32	$31,281.31	$46,530.16

[177] For clarity, on his tax returns, the father reported net income of only $21,285.15 in 2012, $28,703.70 in 2013, $4,735.96 in 2014, $11,920.69 in 2015, and $29,215.16 in 2016. This means that I added back total expenses of $28,164.56 in 2012, $52,711.73 in 2013, $21,506.36 in 2014, $15,152.62 in 2015 and $13,540 in 2016 to arrive at the father's adjusted income before the tax gross up in the above table. I have applied a gross up on these amounts of expenses added back in each of these years.

[178] Regarding 2017, again Mr. Arvanitis only had information to calculate income to April 25, 2017. But by the trial, the Court had the report (tax worksheet) from Sutton Group for all of 2017. The father earned gross commissions of $84,978.50. Again, Mr. Arvanitis suggested that I deduct expenses at between 20% and 30% of the gross commissions, with 20% being ultra conservative. If the mid-point of Mr. Arvanitis' suggested ranges were used (ie. 25%), the father's adjusted net income for 2017 would be $63,733.88.

F. Whether the Father is Underemployed

[179] This does not end the analysis however. The mother argued that the father has a number of other skills, and that he offers a number of other services, apart from selling real estate. Either way, she argued that he could earn more money.

[180] In my view, determining the father's income based on a review of his commissions and expenses with a tax gross up in all years but one (2013) would not lead to a fair assessment of the father's incomes in the relevant years. That approach would not lead to a fair amount of support for these children.

[181] I agree with the mother's submissions and I find that the father has been intentionally underemployed within the meaning of section 19(1)(a) of the Guidelines. In accordance with Trang v. Trang, I find it is fair and appropriate to continue to impute an income to the father, albeit using different calculations from those Jones J. used, given the changed circumstances.

[182] The leading case on imputing income pursuant to section 19(1)(a) of the Guidelines is Drygala v. Pauli, 2002 CarswellOnt 3228 (C.A.). Drygala v. Pauli considered a payor's underemployment to pursue education and whether that was reasonable. Although factually dissimilar to this case, the following applicable principles emanate from Drygala v. Pauli:

(a) One of the objectives of the Guidelines is to establish a fair amount of support for children to ensure they benefit from the financial means of both parents after separation;

(b) It is not necessary to find a specific intent to evade child support obligations before income can be imputed. There is no requirement of bad faith;

(c) There is a duty to seek employment. A parent cannot avoid child support by a "self-induced" reduction of income; and

(d) If income is to be imputed, there must be a rational basis for the figure selected. The Court must consider what is reasonable in the circumstances, including the payor's age, education, experience, skills, health, the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations and the hourly rate that the parent could reasonably be expected to obtain.

[183] In Duffy v. Duffy, 2009 NLCA 48, the Newfoundland and Labrador Court of Appeal considered whether to impute an income to a self-employed lawyer. At ¶ 35, the Court summarized several general principles, which are applicable in this case:

1. The fundamental obligation of a parent to support his or her children takes precedence over the parent's own interests and choices.

2. A parent will not be permitted to knowingly avoid or diminish, and may not choose to ignore, his or her obligation to support his or her children.

3. A parent is required to act responsibly when making financial decisions that may affect the level of child support available from that parent.

4. Imputing income to a parent on the basis that the parent is "intentionally under-employed or unemployed" does not incorporate a requirement for proof of bad faith. "Intentionally" in this context clarifies that the provision does not apply to situations beyond the parent's control.

5. The determination to impute income is discretionary, as the court considers appropriate in the circumstances.

6. Where a parent is intentionally under-employed or unemployed, the court may exercise its discretion not to impute income where that parent establishes the reasonableness of his or her decision.

7. A parent will not be excused from his or her child support obligations in furtherance of unrealistic or unproductive career aspirations or interests. Nor will it be acceptable for a parent to choose to work for future rewards to the detriment of the present needs of his or her children, unless the parent establishes the reasonableness of his or her course of action.

8. A parent must provide proper and full disclosure of financial information. Failure to do so may result in the court drawing an adverse inference and imputing income.

[184] Several of these principles were re-stated in Frank v. Linn, 2014 SKCA 87 at ¶ 96. In Tillmanns v. Tillmans, 2014 ONSC 6773 (S.C.J.), Pazaratz summarized a number of the principles from the case law interpreting section 19(1)(a) of the Guidelines, including those cited above. In addition, the cases he referred to provide that:

(a) The onus falls on the parent requesting that income be imputed to provide an evidentiary basis upon which a quantum can be imputed. See Homsi v. Zaya, 2009 ONCA 322 at ¶ 28;

(b) Once intentional underemployment is found, the payor must show that what he or she has been doing to earn an income is reasonable; and

(c) A parent cannot engage in reckless behaviour which diminishes income earning capacity.

[185] In arriving at the decision I am making, I considered and relied upon the decision of Kruzick J. in M.S. v. A.R., 2017 ONSC 5182 (S.C.). In that case, the father had been employed in various capacities during the marriage as a banker, investment consultant and mortgage broker. He was also licensed and worked as a real estate agent.

[186] At the trial, the father testified that he renews his license each year but did not wish to pursue that career. He provided little evidence at trial of a devoted job search. He offered anecdotal evidence of what he could earn as a mortgage underwriter. He had not considered other employment outside of mortgage writing, nor had he pursued working as a real estate agent.

[187] The father submitted the Court should impute only $35,000 per year, whereas the mother submitted $70,000.00. The Court accepted the mother's figure. In so doing, Kruzick J. relied on the father's own correspondence with a recruiter in which he requested a higher rate of compensation than that proposed by the mother. The Court relied on the father's experience as a real estate agent and his historical income going back 16 years to come up with a number that was fair and reasonable. Kruzick J. was critical of the father for not pursuing a more active job search.

[188] I also relied upon the decision of Sheilagh O'Connell J. in Sos-Porritt v. Porritt, 2015 ONCJ 477 (C.J.), another case involving a real estate agent. In that case, O'Connell J. undertook an analysis of the father's income and expenses as I have done in this case. Separately, she also considered whether it was appropriate to impute under section 19(1)(a). She found that the steps the payor took to maximize his income in real estate were lacking and relied on that as part of the evidentiary basis to impute an income at $80,000.00.

[189] Pursuant to section 19(1)(a) of the Guidelines I find it is reasonable that the father be able to net at least $100,000 per year, which is only 50% of the amount Jones J. attributed. I impute that level of income to him for each year since the Order commencing in 2012, other than 2013. In 2013, the father's adjusted net income exceeds the $100,000 figure. For 2013, I do not rely on section 19(1)(a) of the Guidelines but rather the methodology/calculations set out above and I determine his income to be $107,991.43.

[190] In imputing $100,000 in those years, I rely on the following.

[191] The father has a Bachelor's degree in Architecture that he earned from a university in Poland. According to the summary of the father's employment and experience that the mother tendered from the "Linkedin" website, in addition to selling real estate, the father:

(a) runs "Drotlef Homes" from 1999 to present. This services "Drotlef Homes" provides are described as renovations, staging and design;

(b) was a "top recruiter" for Primerica Financial Services from 2008 to 2009;

(c) ran "Drotlef Communications Inc." from 1994 to 2003, and provided publishing, marketing-promotion, and editing services through that company; and

(d) provided architectural design and graphic design services between 1984 and 1994.

[192] The mother also tendered a flyer about the father, written in Polish. The mother provided a translation of the flyer, which the father admitted was substantially accurate. The flyer is the one the father had in circulation in 2014 and 2015. It states that the father sells and leases residential and commercial real estate, assists with mortgages, provides renovation services, investment planning and debt counselling though a company called "Debt Free Living". Recall that Jones J. imputed referral fees from "Debt Free Living" to the father based on documentary evidence she had before her covering one month prior to the uncontested trial.

[193] The father said that the flyer was created for promotional purposes only, designed to attract more real estate clients. He admitted that he used to operate Drotlef Communications Inc., but he did this with his wife, to promote Polish business. He has not done this in recent times. He also did some freelance work when he first came to Canada, but this is in the past.

[194] The father testified that in spite of the flyer, he does not provide renovation services. He first said the he has nothing to do with "Debt Free Living". Then he said he used to earn referral fees 7 years ago, but he no longer does.

[195] I do not know where the truth lies in these respects, but there was no evidence of any income earned from referral fees related "Debt Free Living" for any of the years in issue. There was no evidence at trial that the father earned any income from any other source apart from real estate sales in the years 2012 to present.

[196] That notwithstanding, the mother argued the father could be earning more. She suggested that the average income for a real estate agent is $130,000 per year based on some internet research she did. The mother's internet research was not properly before me in evidence and I decline to rely on it. However, I nevertheless find that she established a sufficient evidentiary basis to impute an income.

[197] While I heard various reasons why the father's income has not been $200,000 for the past several years, the mother established that the father made little effort to rebound from his decreased income.

[198] The father has a 19 year career in real estate. He has won a number of real estate awards based on his sales, which he tried to downplay. As set out above, the father testified that he hires a student, who spends minimal time distributing flyers. Other than that, he relies on referrals, but I heard almost no evidence about the size of his referral base or what he is doing to increase or maintain his referral base.

[199] The mother established that the father is not trying hard enough. What he has done to ensure he earns more money and support his children is not reasonable. It is not reasonable for the father to ask the Court to set his child support based on an income of just over $30,000 in some years given his skills and career.

[200] In imputing $100,000 to the father for most years, I rely on the fact that the father himself testified that he could obtain at least 3 listings per month and earn $200,000 again, if he had a car. Given my assessment of the evidence about the car and the reason he lost his license, I find that the father could have, and should have been able to obtain this many listings already. Plus his own evidence is that he has hired a company to drive him.

[201] If this story is true, then he could have used this company even more. He did not explain the frequency with which he uses MegaCity or whether he could use them more. Granted this may have increased the transportation expense but so too would it lead to increased commissions, on the father's logic.

[202] In my view, the $100,000 amount that I am imputing is a conservative figure. In the real estate market in the GTA, if he were to pursue 3 listings per month, which he says he can do, this should amount to more than the $100,000 conservative amount that I have attributed.

G. Whether the Court Should Permit a Downward Variation Retroactively

[203] Just because I have determined the father's income to be lower than that which Jones J. imputed to the father in the years following Jones J.'s Order does not mean that the Court must, or should, vary the Order retroactively back to the date of the Order.

[204] The father made very few submissions about the appropriate test to apply. Nevertheless, his claim engages a question about the arrears that accumulated during two different time periods.

(1) The Retroactive Component of Jones J.'s Order: March 1, 2011 to January 1, 2012

[205] First, Jones J.'s Order contained a retroactive component as of January 10, 2012. In other words, back in January 2012, she ordered retroactive support at $2,572 per month for the period March 1, 2011 through to January 1, 2012, plus further retroactive support of $52,400 for the period March 1, 2008 to February 28, 2011, plus $1,500 in costs.

[206] At ¶ 21-23 of Gray v. Rizzi, 2016 ONCA 152, the Court of Appeal held that it was a reversible error to rely on circumstances pre-dating the Final Order to vary the retroactive component of that Order. Gray v. Rizzi was governed by sections 17(4) and 17(4.1) of the Divorce Act which required the trial judge to satisfy herself that there had been a change in circumstances "since the making" of the Final Order.

[207] The language in the FLA is different. Section 37(2.1) provides the Court with various powers to vary a child support order if the Court "is satisfied that there has been a change in circumstances within the meaning of the child support guidelines or that evidence not available on the previous hearing has become available".

[208] But in Gray v. Rizzi, the Court of Appeal addresses this difference in language and the fact that non-disclosure should not be rewarded. At ¶ 34, 36 and 37 of Gray v. Rizzi, the Court of Appeal said the following, which has a direct bearing on this case:

[34] To allow a party who ignores his or her financial disclosure obligations to later satisfy the requirement and argue that the late disclosure constitutes a material change in circumstances would eviscerate the financial disclosure regime. The practical dangers of such an approach were well-described by Pazaratz J. in Trang v. Trang, 2013 ONSC 1980, 29 R.F.L. (7th) 364, at paras. 53, 54 and 59, discussing motions to change where the final order imputed income to the payor:

If "declared income" automatically prevailed on a motion to change support, it would defeat the purpose of imputing income in the first place. It might even be a disincentive for payors to participate in the initial court process. They could simply ignore support Applications – as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong.

Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it.

[36] Whether that should be so or not, the fact remains that the statutes do contain different tests. Section 17 of the Divorce Act does not recognize, as a ground for a variation, that evidence not available prior to the making of a final order later becomes available. Furthermore, while it is not necessary on this appeal to interpret ss. 37(2) and 37(2.1) of the Family Law Act, I have great difficulty in conceiving that "evidence not available on the previous hearing" could include financial information that was "not available" because of a party's deliberate failure to meet his disclosure obligations.

[37] The trial judge therefore erred in accepting that a motion to change is available to a payor on the basis of financial information that is new to the court because the payor had failed to meet his prior disclosure obligations.

[209] The father has not established any basis for the Court to go behind the date of the uncontested trial. The evidence before Jones J. was that the father's income was even higher in the years prior to 2012. The father did not tender any new evidence in this trial to suggest otherwise. Even if he had, a retroactive variation that far back would not be appropriate as he chose not to comply and participate in the first proceedings.

[210] As of January 1, 2012 alone, the father owed $82,192 (before any of the payments he made are taken into account) as a result of the retroactive component of Jones J.'s Order. In total, the father has paid $86,896.80 as of December 31, 2017. I note this because of the father's submission that he would somehow be entitled to a refund on an overpayment. He has barely paid the retroactive component of the support ordered by Jones J.

(2) The Arrears That Have Accrued Since January 10, 2012

[211] Turning then to the period of time after Jones J.'s Order, I note that in Gray v. Rizzi at ¶ 40-44, the Court of Appeal upheld the trial judge's finding that the payor's income decreased after that date of the final Order and this met the requisite change of circumstances threshold. Having so found, the Court then considered how to approach the requested retroactive variation. At ¶ 54 the Court of Appeal held that barring exceptional circumstances, the factors respecting claims for a retroactive increase to child support in S. (D.B.) v. G. (S.R.), 2006 SCC 37 ("D.B.S.") apply to requests to reduce child support retroactively based on a payor's material decline in income, with minor modifications.

[212] At ¶ 55-64 of Gray v. Rizzi, the Court of Appeal re-stated a number of principles from D.B.S. and other cases, adapted to the request for a retroactive downward adjustment:

(a) Child support is the right of the children. The Court must keep in mind the best interests of the children;

(b) The Court should distinguish cases where a payor seeks relief from payment of arrears based on current inability to pay from those where arrears accumulated due to a change in circumstances that affected the payor's ability to make the child support payments when they came due;

(c) The request for relief based on current inability to pay will not generally result in rescission or reduction unless the payor establishes that he cannot and will not ever be able to pay the arrears;

(d) Where a change of circumstances took place during the time that arrears were accumulating which rendered the payor unable to make child support payments for a substantial period of time, the court may provide relief by varying the child support order or rescinding arrears.

[213] Like in Gray v. Rizzi, this case falls into the latter category.

[214] At ¶ 60, the Court set out a list of factors to guide courts in determining whether to grant retroactive relief, the date of retroactivity and the quantum of relief. I reproduce those factors verbatim as follows:

1. The nature of the obligation to support, whether contractual, statutory or judicial;

2. The ongoing needs of the support recipient and the child;

3. Whether there is a reasonable excuse for the payor's delay in applying for relief;

4. The ongoing financial capacity of the payor and, in particular, his ability to make payments towards the outstanding arrears;

5. The conduct of the payor, including whether the payor has made any voluntary payments on account of arrears, whether he has cooperated with the support enforcement authorities, and whether he has complied with obligations and requests for financial disclosure from the support recipient. As stated by Chappel J.: "Behaviour that indicates wilful non-compliance with the terms of the order or failure to work cooperatively to address the child support issue is a factor that militates against even partial rescission or reduction of arrears";

6. Delay on the part of the support recipient, even a long delay, in enforcing the child support obligation does not, in and of itself, constitute a waiver of the right to claim arrears;

7. Any hardship that may be occasioned by a retroactive order reducing arrears or rescinding arrears, or by an order requiring the payment of substantial arrears.

[215] In this case, the children have an ongoing need. I have found that the children have suffered hardship. The mother and the children lived on a very low income for several years and the mother had to refinance her home more than once to make ends meet.

[216] As the Court said at ¶ 61, a retroactive order should normally commence as of the date of effective notice (meaning the date the father gave notice that he felt the amount of child support needed to be renegotiated) and it will generally be inappropriate to go back more than three years beyond formal notice. In this case, I do not have complete evidence of the date of effective notice.

[217] More particularly, I do not know precisely when the father commenced the Brampton proceeding. Apparently it was sometime in 2014. That would be formal notice in that proceeding but then it was dismissed. The date of formal notice in this current proceeding was November 16, 2016. In the absence of evidence of effective notice between 2012 and 2014, arguably then effective notice for the purposes of this proceeding could be sometime in 2014 when the father launched the Brampton proceeding.

[218] But in this case, the father's conduct militates against granting him relief back to 2012 and even to 2014.

[219] I further considered whether the father could ask for retroactive relief prior to Sullivan J.'s Order dated March 21, 2016 dismissing the first Motion to Change, because to do so would necessarily require me to rely on evidence of his changed circumstances prior to this date. However, I do not read Sullivan J.'s dismissal as being made "with prejudice" in that he granted the father leave to re-file his Motion to Change. That Order of Sullivan J. was not final and so issue estopped is not engaged. Again, see Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 at ¶ 20-25.

[220] However, I remain troubled by the fact that the father chose not to comply and participate properly in the Court's processes. I have found that the father has delayed his pursuit of this child support reduction for years. I have addressed this extensively above.

[221] To summarize:

(a) He has not complied with multiple disclosure orders;

(b) He did not participate in the first proceedings;

(c) The second proceeding was dismissed for his being irresponsible in the litigation;

(d) He was not complete or honest with his productions in this current proceeding;

(e) The father was wilfully non-compliant with the child support order. His payment history has been abysmal;

(f) He has not complied with the Final Default Order; and

(g) His license has been suspended.

[222] These facts heavily militate against granting significant retroactive relief. In weighing the various factors articulated in Gray v. Rizzi, I find that the Court must give effect to the various orders that have been made to try to secure the father's compliance. If I were to vary the Order back in time as the father asks, it would be tantamount to condoning the father's conduct.

[223] On the other hand, as the Court held in D.B.S., I am also mindful that the Court should try to craft an award in a way that minimizes hardship. See D.B.S. at ¶ 114-116.

[224] In this context, "hardship" does not have the same meaning as "undue hardship" pursuant to section 10 of the Guidelines. See Koback v. Koback, 2013 SKCA 91.

[225] Although its comments were made in the context of a traditional retroactive support claim for an increase, at ¶ 56-59 of Goulding v. Keck, 2014 ABCA 138, the Alberta Court of Queen's Bench said the following about hardship, which has application here:

In awarding retroactive support, the court is entitled to consider fairness to all parties. Hardship to the payor is typically at the forefront of an application. Equally relevant, however, is the hardship suffered by the recipient parent and the child as a result of the lack of sufficient support.

Hardship, however, is not an abstract or impressionistic concept to be asserted by a payor in an effort to avoid a retroactive award. To weigh against granting retroactive child support, the payor parent must establish real facts from which a reasonable finding of serious hardship could be made. A bald or vague assertion of hardship is not sufficient. The obligation to pay support at the Guidelines amount for a prior period is not a hardship (Greene at para 87). The payor does not suffer hardship by having to pay money which he or she may otherwise owe.

Even where hardship is established, courts have broad discretion to mitigate hardship to the payor through a structured payment plan. Indeed, statutory regimes provide judges with discretion to structure child support awards as a lump sum, a series of periodic payments, or a combination of the two: see, e.g., section 11 of the Guidelines.

In this case, the respondent provided no factual foundation from which a finding of hardship could be made. The chambers judge erred in finding to the contrary.

[226] From the children's perspective, I find that a sizeable reduction of the arrears would cause hardship to them.

[227] I also find that the father has failed to persuade the Court that he will suffer hardship, as understood in this context. In fact he offered very little evidence to persuade the Court of hardship. The father's financial statement sworn October 26, 2017 reveals that he owes considerable child support to the mother in this case, plus child support arrears of $14,471.42 to Mrs. Drotlef as of October 2016. He owes over $1,320,590.46 in taxes as of the date of the financial statement, and he owes about $63,000 in personal debts to others. These debts were either self-induced through the non-payment of support or taxes, or do not take priority over child support. Other than the fact that the father remains an undischarged bankrupt, I also have almost no evidence about the state of affairs in the father's bankruptcy.

[228] In the result, balancing these factors, the Court shall vary the Order retroactively to December 1, 2016, which is the first of the month after formal notice in this proceeding. The table amount of child support for two children based on an income of $100,000 is $1,416.00 for the months December 1, 2016 to November 1, 2017, based on the tables then in effect, and the table amount of support thereafter is $1,471.00.

[229] My general comments about hardship notwithstanding, I am mindful that I have declined to grant the father relief for periods of time when child support arrears have accumulated based on an income figure higher than I have imputed to the father. In addition to the reasons I have stated above for this, I also note that there is a further element of trial fairness and fairness to the mother that I must take into account and weigh.

[230] Regarding the trial process, the best evidence as to a payor's income and his or her ability to earn an income is generally available at the time it is earned or soon thereafter. With the passage of time as in this case, the Court is left in the position to look backwards and try to piece together the evidence based on what is presented after the fact. In the specifics of this case, the father was unable to tender proper records of his expenses after the fact and said he could not remember other important pieces of information historically. Had the father cooperated with the Court's processes at the relevant times, this problem with the evidence may have been avoided.

[231] From the point of view of fairness to the mother, the mother ought to have been able to organize her financial affairs based on the Order that was in place. While the presumptive validity of a Court Order is not absolute as the Court said in D.B.S., the mother nevertheless had a strong interest in certainty and finality. If the Court were to grant the father significant relief on the facts of this case, that would undermine the certainty that the mother ought to have enjoyed to a degree that is too great to condone in this case.

[232] I accept that the father does not have the present ability to pay the arrears in full at this time. But in crafting the result in this case, I am also mindful of the father's statement that he will now strive to obtain 3 listings per month and bring his income back up to $200,000.00. I am therefore finding that he will have the ability to pay the arrears in the future. In these circumstances, rescinding arrears as the father has asked is not the only option. In accordance with Gray v. Rizzi and DiFrancesco v. Cuoto, 2001 CarswellOnt 3858 (C.A.), I will fix the arrears and suspend their repayment for a period of one year, with a repayment schedule thereafter. I have granted the year suspension to enable the father to make a real effort to increase his business, which has been lacking.

[233] However, the father is ordered to pay the ongoing support each month. If the father defaults on the payment of the ongoing child support for more than 30 days, then the year long suspension of payment of the arrears shall be lifted. Based on this Order, the father should contact the FRO to determine if his driver's license can be reinstated.

H. The Mother's Claim for Section 7 Expenses

[234] The mother tendered a number of receipts for various items going back historically to 2013 for music, dance, soccer and summer camp. The mother's evidence is that the children are extremely bright and gifted. They sing in choirs and play instruments. Julian was involved in soccer and dance.

[235] The mother asked that the father contribute to these "past, present and ongoing expenses".

[236] I did not hear any evidence as to how to apply the D.B.S. factors to these claims. Certainly the father engaged in blameworthy conduct. But I do not know when the mother asked for the father's contribution nor whether these expenses were pursued in the Brampton proceeding and if not, why not.

[237] In any case, given the Order that I am making which will result in sizeable arrears being owed, I decline to make any further Order for section 7 expenses for these expenses, irrespective of when they were incurred.

[238] I make one exception. In 2017, after this proceeding commenced, the mother paid $7,280 for orthodontic work for Anastasia. The father admitted in cross-examination that it was paid. This expense is reasonable. The child required this orthodontic work to be done.

[239] Neither party made any submissions as to what the mother's income for 2017 should be. I will apportion this 2017 expense based on the mother's 2016 Line 150 Income of $20,778.90 (the most recent tax return I had) and the father's imputed income of $100,000.00. This means that the father shall pay 83% of this expense. After taking into account the applicable tax credit, the father's share of this 2017 expense is $3,840.00, which shall be added to his arrears.

I. Calculation of Arrears Owing

[240] Arrears are therefore fixed at $148,497.93, less any additional payments he made after January 1, 2018 calculated as follows:

Description	Amount
Arrears at November 30, 2016 per FRO Statement of Arrears, Exhibit 11	$128,272.58
Arrears calculated at $1,416.00 per month for 11 months (December 1, 2016 to November 1, 2017)	$15,576.00
Arrears calculated at $1,471.00 per month for 5 months (December 1, 2017 to April 1, 2018)	$7,355.00
Arrears of Section 7 Expenses	$3,840.00
Less Payments made commencing December 1, 2016 per FRO Statement of Arrears, Exhibit 11 up to January 1, 2018 (Ex 11 only contains transactions up to January 1, 2018).	($6,545.65)
Less any additional payments made after January 11, 2018	TBD
Total	$148,497.93 less additional payments made after January 1, 2018.

[241] The father's monthly budget on his financial statement sworn October 26, 2017 has $500 per month for various business expenses that should have been deducted from gross income. If that expense is removed, he has a modest monthly budget of $1,912.00. This omits the $700 per month in combined child and spousal support that he is supposed to be paying pursuant to Clay J.'s Order. When that is taken into account (ignoring the negligible tax benefit the father should receive from deducting any spousal support), his monthly budget rises to $2,612.00 per month, or $31,344.00 per year.

[242] Based on the income of $100,000 that I have imputed to the father, his income net of tax would be $71,868.00. Pursuant to the order I am making, he is required to pay the ongoing child support of $1,471.00 per month right away. This is $17,652.00 per year. So if the father needs $31,344 per year for his other expenses, in a year from now when the arrears shall start to be paid pursuant to my order, he will have $22,827 per annum left over to make arrears payments.

[243] I therefore find that the father can afford to pay up to $1,900 per month towards the arrears until they are paid in full. The mother has asked that I order the arrears payable over 8 years. As I am suspending payments towards the arrears for a year, when they start to be paid, it will take the father a further 6 ½ years to pay them off, for a total of 7 ½ years from today. This is more or less what the mother has asked for and I find her request to be reasonable, but as modified by me.

J. The Father's Loco Parentis Argument

[244] The father mentioned in his documentary evidence that the mother's new partner is allegedly in loco parentis to the children in this case. This argument was not pursued at trial and there was insufficient evidence for the Court to deal with it. Mr. Foster was not served nor given an opportunity to participate in these proceedings.

PART VI: ORDER

[245] I make the following Orders:

(a) Commencing May 1, 2018 and on the first of each month thereafter, the father shall pay child support in the amount of $1,471 per month for Anastasia Helena Janik-Drotlef, born July 20, 2003 and Jerzy "Julian" Janik-Drotlef, born October 29, 2005. This is the table amount of support for two children based on imputed income to the father of $100,000.00;

(b) In the future, the father shall continue to pay child support for the children based on the greater of his imputed income of $100,000.00 and his actual income, subject to any future variations in accordance with section 37(2.1) of the FLA;

(c) Arrears of child support and section 7 expenses owing from the father to the mother are fixed at $148,497.93, less any amounts the father may have paid through the FRO after January 1, 2018;

(d) In calculating the final amount of arrears owing under (c) above, the FRO shall deduct any amounts paid by the father to the mother through the FRO after January 1, 2018;

(e) Payment of the final amount of arrears, after applying the credit provided for in paragraph (d), shall be suspended until May 1, 2019;

(f) Commencing May 1, 2019, the father shall repay the mother the arrears at the rate of $1,900 per month until the arrears are paid in full;

(g) If the father defaults respecting the payment of ongoing child support provided for in (a) above for more than 30 days between now and May 1, 2019, then the suspension provided for in paragraphs (e) and (f) shall be lifted and repayment of the arrears shall commence upon the default for more than 30 days;

(h) If either party seeks costs he or she shall file brief submissions, limited to 5 pages in length, double spaced, with a Bill of Costs, any Offers to Settle and any case law. If the mother is claiming costs, then in her submissions, she should address the law respecting costs for a self-represented litigant and she should advise the Court what hourly rate she is claiming and why and provide the Court with a detailed breakdown of any time she spent preparing for any steps in this case for which she claims costs recovery, plus any travel costs she incurred to travel between Toronto and New Brunswick for this trial;

(i) The parties should also address how the costs of $400 that I fixed and reserved on December 20, 2017 should be allocated;

(j) The mother shall file her costs submissions by May 17, 2018;

(k) The father has until June 8, 2018 to respond; and

(l) A Support Deduction Order shall issue.

Released: May 2, 2018

Signed: Justice Alex Finlayson